As filed with the U.S. Securities and Exchange Commission on September 9, 2004
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------
FORM F-6
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
For Depositary Shares Evidenced by American Depositary Receipts
------------------
HOYA KABUSHIKI KAISHA
(Exact name of issuer of deposited securities as specified in its charter)
HOYA CORPORATION
(Translation of issuer's name into English)
Japan
(Jurisdiction of incorporation or organization of issuer)
Deutsche Bank Trust Company Americas
(Exact name of depositary as specified in its charter)
Sixty Wall Street, New York, NY 10005
Telephone (212) 602-3761
(Address, including zip code, and telephone number, including area
code, of depositary's principal executive offices)
------------------
CT Corporation System
111 Eighth Avenue
New York, NY 10011
(212) 894-8700
(Address, including zip code, and telephone number, including
area code, of agent for service)
Copy to:
Joel M. Simon, Esq. Kaoru Umino, Esq.
Paul, Hastings, Janofsky & Paul, Hastings, Janofsky & Walker LLP
Walker (Europe) LLP Ark Mori Building
88 Wood Street 12-32, Akasaka 1-chome
London, EC2V 7AJ Minato-ku, Tokyo 107-6027 Japan
United Kingdom 011-81-3-3586-5643
011-44-20-7710-2018
It is proposed that this filing become effective under Rule 466
|_| immediately upon filing
|_| on (Date) at (Time)
If a separate registration statement has been filed to register
the deposited shares, check the following box. |_|
CALCULATION OF REGISTRATION FEE
======================= ============== ============ ============= =============
Amount to be Proposed Proposed Amount of
Title of each class registered maximum maximum registration
of Securities to be aggregate aggregate fee
registered price per offering
unit (1) price (2)
- ----------------------- -------------- ------------ ------------- -------------
100,000,000 $5.00 $5,000,000 $633.50
American Depositary American
Shares evidenced by Depositary
American Depositary Shares
Receipts, each
American Depositary
Share representing
one (1) share of
common stock of HOYA
CORPORATION
======================= ============== ============ ============= ==============
(1) Each Unit represents 100 American Depositary Shares.
(2) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rule 457(k), such estimate is computed on the basis of the
maximum aggregate fees or charges to be imposed in connection with the
issuance of American Depositary Receipts evidencing American Depositary
Shares.
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
PART I
INFORMATION REQUIRED IN PROSPECTUS
The Prospectus consists of the proposed form of American Depositary
Receipt ("ADR" or "American Depositary Receipt") included as Exhibit A to the
Deposit Agreement filed as Exhibit (a) to this Registration Statement, which is
incorporated herein by reference.
CROSS REFERENCE SHEET
Item 1. DESCRIPTION OF SECURITIES TO BE REGISTERED
Location in Form of American Depositary
Item Number and Caption Receipt Filed Herewith as Prospectus
- ---------------------------------------------------------- -------------------------------------------
(1) Name and address of Depositary Introductory Paragraph
(2) Title of American Depositary Receipts and identity Face of American Depositary Receipt, top
of deposited securities center
Terms of Deposit:
(i) Amount of deposited securities represented Face of American Depositary Receipt,
by one unit of American Depositary Shares upper right corner
(ii) Procedure for voting, if any, the deposited Paragraphs 7, 8 and 9
securities
(iii) Collection and distribution of dividends Paragraphs 6.1, 6.2, 6.3, 6.4,
6.5, 7 and 9
(iv) Transmission of notices, reports and proxy Paragraphs 7, 8, 9, 12.1, 12.5 and 12.6
soliciting material
(v) Sale or exercise of rights Paragraphs 6.3, 7 and 9
(vi) Deposit or sale of securities resulting from Paragraphs 2.2, 6.2 and 9
dividends, splits or plans of reorganization
(vii) Amendment, extension or termination of the Paragraphs 10 and 11
Deposit Agreement
(viii) Rights of holders of receipts to inspect the Paragraph 12.3
transfer books of the Depositary and the
list of Holders of receipts
(ix) Restrictions upon the right to deposit or Paragraphs 1.1, 1.2, 3, 4, 5, 6.5,
withdraw the underlying securities 12.2 and 12.4
(x) Limitation upon the liability of the Paragraphs 9 and 11
Depositary
(3) Fees and Charges Paragraphs 2.3 and 15
2
Item 2. AVAILABLE INFORMATION
Location in Form of American Depositary
Item Number and Caption Receipt Filed Herewith as Prospectus
- ---------------------------------------------------------- -------------------------------------------
(a) The Company furnishes the United States Securities Paragraph 12.1
and Exchange Commission with certain public reports
and documents required by foreign law or otherwise
under Rule 12g3 2(b) under the Securities Exchange
Act of 1934. These reports can be inspected by
holders of American Depositary Receipts and copied
at public reference facilities maintained by the
Commission located at Judiciary Plaza, 450 Fifth
Street, N.W. (Room 1024) , Washington, D.C. 20549,
and at the principal executive office of the
Depositary.
3
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. EXHIBITS
(a) Form of Deposit Agreement. Form of Deposit Agreement among HOYA
CORPORATION, Deutsche Bank Trust Company Americas, as depositary
(the "Depositary"), and all holders from time to time of ADRs
issued thereunder (the "Deposit Agreement"), including the Form
of American Depositary Receipt, is filed herewith as Exhibit (a).
(b) Any other agreement to which the Depositary is a party relating
to the issuance of the American Depositary Shares registered
hereunder or the custody of the deposited securities represented
thereby. Not Applicable.
(c) Every material contract relating to the deposited securities
between the Depositary and the issuer of the deposited securities
in effect at any time within the last three years. Not
Applicable.
(d) Opinion of Paul, Hastings, Janofsky & Walker (Europe) LLP,
counsel to the Depositary, as to the legality of the securities
being registered. Filed herewith as Exhibit (d).
(e) Certification under Rule 466. Not applicable.
(f) Power of Attorney. Included as part of the signature pages
hereto.
Item 4. UNDERTAKINGS
(a) The Depositary hereby undertakes to make available at the
principal office of the Depositary in the United States, for
inspection by holders of the American Depositary Receipts, any
reports and communications received from the issuer of the
deposited securities which are both (1) received by the
Depositary as the holder of the deposited securities, and (2)
made generally available to the holders of the underlying
securities by the issuer.
(b) If the amounts of fees charged are not disclosed in the
prospectus, the Depositary undertakes to prepare a separate
document stating the amount of any fee charged and describing the
service for which it is charged and to deliver promptly a copy of
such fee schedule without charge to anyone upon request. The
Depositary undertakes to notify each registered holder of an
American Depositary Receipt thirty days before any change in the
fee schedule.
4
SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that all the
requirements for filing on Form F-6 are met and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in London, United Kingdom, on September 9, 2004.
Legal entity created by the form of Deposit
Agreement for the issuance of ADRs evidencing
American Depositary Shares
By: DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Depositary
By: /s/ Mike Hughes
----------------------------
Name: Mike Hughes
Title: Director
By: /s/ Jeff Margolick
----------------------------
Name: Jeff Margolick
Title: Vice President
5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, HOYA
CORPORATION certifies that it has reasonable grounds to believe that all the
requirements for filing on Form F-6 are met and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Tokyo, Japan, on September 9, 2004.
HOYA CORPORATION
By: /s/ Hiroshi Suzuki
-----------------------------------
Name: Hiroshi Suzuki
Title: President & CEO
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Hiroshi Suzuki and Kenji Ema, jointly and
severally, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including pre-effective
and post-effective amendments) to this Registration Statement, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or their or his substitute or substitutes, may lawfully do or cause to
be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated as of September 9, 2004
Signatures Title
---------- -----
/s/ Hiroshi Suzuki
------------------------------ Director, President & CEO
Hiroshi Suzuki
/s/ Takeo Shiina
------------------------------ Director
Takeo Shiina
/s/ Naotaka Saeki
------------------------------ Director
Naotaka Saeki
/s/ Yuzaburo Mogi
------------------------------ Director
Yuzaburo Mogi
6
Signatures Title
---------- -----
/s/ Yoshikazu Hanawa
------------------------------ Director
Yoshikazu Hanawa
/s/ Eiko Kono
------------------------------ Director
Eiko Kono
/s/ Kenji Ema
------------------------------ Director,
Kenji Ema Chief Financial Officer
/s/ Hiroaki Tanji
------------------------------ Director
Hiroaki Tanji
/s/ Gerald W. Bottero
------------------------------ HOYA HOLDINGS, INC.
Gerald W. Bottero (Authorized Representative in
the United States)
7
INDEX TO EXHIBITS
Exhibit
Number
- ------
(a) Form of Deposit Agreement.
(d) Opinion of Paul, Hastings, Janofsky & Walker (Europe) LLP, counsel to
the Depositary, as to the legality of the securities to be registered.
8
Exhibit (a)
================================================================================
DATED OCTOBER __, 2004
DEPOSIT AGREEMENT
HOYA CORPORATION
and
DEUTSCHE BANK TRUST COMPANY AMERICAS
as Depositary
and
HOLDERS AND BENEFICIAL OWNERS OF AMERICAN DEPOSITARY RECEIPTS
================================================================================
TABLE OF CONTENTS
Page
1. DEFINITIONS AND INTERPRETATION.........................................1
2. APPOINTMENT OF DEPOSITARY; FORM OF ADR; TRANSFERABILITY...............3
3. DEPOSIT OF SHARES......................................................4
4. ISSUE OF ADRs..........................................................5
5. TRANSFER, COMBINATION AND SPLIT-UP OF ADRS; SUBSTITUTION OF ADRS;
CANCELLATION AND DESTRUCTION OF ADRS; MAINTENANCE OF RECORDS...........7
6. DISTRIBUTIONS; CONVERSION OF FOREIGN CURRENCY; WITHHOLDING.............9
7. CUSTODIAN.............................................................15
8. DEPOSITARY'S AGENTS...................................................15
9. MAINTENANCE OF OFFICE.................................................15
10. STANDARD OF CARE......................................................16
11. RESIGNATION AND REMOVAL OF THE DEPOSITARY: SUCCESSOR DEPOSITARY........
12. AMENDMENT.............................................................17
13. TERMINATION...........................................................17
14. INFORMATION...........................................................18
15. INDEMNIFICATION.......................................................20
16. COMPLIANCE WITH U.S. SECURITIES LAWS..................................21
17. MISCELLANEOUS.........................................................21
18. GOVERNING LAW.........................................................22
EXHIBIT A TO DEPOSIT AGREEMENT: Form of ADR.................................A-1
EXHIBIT B TO DEPOSIT AGREEMENT: Fees and Charges of the Depositary..........B-1
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DEPOSIT AGREEMENT dated as of October __, 2004 (the "Agreement")
BETWEEN:
(1) HOYA CORPORATION (the "Company");
(2) DEUTSCHE BANK TRUST COMPANY AMERICAS, as depositary hereunder (the
"Depositary"); and
(3) All holders and beneficial owners from time to time of American Depositary
Receipts issued hereunder.
THE PARTIES AGREE as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
The following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the respective terms used in this Agreement.
"ADR" or "Receipt" means an American depositary receipt evidencing ADSs.
"ADS" means an American depositary share representing beneficial interests
in the Deposited Securities. Each ADS represents the right to receive one
(1) Share.
"ADS Record Date" has the meaning set forth in Section 6.5.
"Affiliate" shall have the meaning assigned to such term by the Commission
under Regulation C promulgated under the Securities Act.
"Articles of Incorporation" means the articles of incorporation (teikan),
as the same may be amended or in force from time to time.
"Beneficial Owner" means a person with a beneficial interest in ADSs;
provided that a Beneficial Owner need not be the Holder of the ADR
evidencing such ADSs and that a Beneficial Owner may exercise any rights
or receive any benefits hereunder solely through the Holder of the ADR(s)
evidencing the ADSs in which such Beneficial Owner has an interest.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not (a) a day on which banking institutions in the Borough of
Manhattan, The City of New York are authorized or obligated by law or
executive order to close and (b) a day on which the market(s) in which
ADRs are traded are closed.
"Commission" means the Securities and Exchange Commission of the United
States or any successor governmental agency in the United States.
"Custodian" means the agent or agents of the Depositary named as Custodian
in the Form of ADR and any additional or successor Custodian which may be
appointed pursuant to Section 7.
"Delivery Order" has the meaning set forth in Section 3.1.
"Depositary's Office" means at any particular time the office of the
Depositary in The City of New York at which its depositary receipt
business is then administered. At the date of this Agreement the
Depositary's Office is located at 60 Wall Street, New York, NY 10005,
United States.
"Deposited Securities" means at any particular time all Shares then
deposited or deemed to be deposited under this Agreement and any and all
additional securities, property and cash received by the Depositary or the
Custodian in respect or in lieu thereof and at such time held hereunder.
"Dollars" and "$" refer to the lawful currency of the United States.
"DRS/Profile" means the system for the uncertificated registration of
ownership of securities pursuant to which (i) ownership of ADSs is
maintained on the books of the Depositary without the issuance of a
physical certificate, (ii) transfer instructions may be given to allow for
the automated transfer of ownership between the books of The Depositary
Trust Company and the Depositary and (iii) ownership of ADSs held in
DRS/Profile is evidenced by periodic statements issued by the Depositary
to the Holders entitled thereto.
"Foreign Exchange Law" means the Foreign Exchange and Foreign Trade Law of
Japan (Law No. 228 of 1949), as amended.
"Foreign Registrar" means JASDEC or any other entity, if any, that carries
out the duties of registrar for the Shares or any successor as registrar
for the Shares and any other appointed agent of the Company for the
transfer and registration of Shares.
"Form of ADR" has the meaning set out in Section 2.2.
"Holder" means the person or persons in whose name an ADR is registered on
the Register and if a Holder is not the Beneficial Owner of the ADS(s)
evidenced by the Receipt registered in its name, such person shall be
deemed to have all requisite authority to act on behalf of the relevant
Beneficial Owners.
"JASDEC" means Japan Securities Depositary Center, Inc., the Japanese
central securities depositary, and any successor entity.
"Pre-release" has the meaning set forth in Section 3.1.
"Pre-released ADR" has the meaning set forth in Section 3.1.
"Register" means a register kept at the Depositary's Office for the
registration, registration of transfer, combination and split-up of ADRs.
"Restricted Securities" means Shares, or ADSs representing such Shares,
which (i) have been acquired directly or indirectly from the Company or
any of its Affiliates in a transaction or chain of transactions not
involving any public offering and subject to resale limitations under the
Securities Act or the rules issued thereunder, or (ii) are held by an
officer or director (or persons performing similar functions) or other
Affiliate of the Company, or (iii) are subject to other restrictions on
sale or deposit under the laws of the United States, Japan, or under a
shareholders' agreement or the Company's Articles of Incorporation or
under the regulations of an applicable securities exchange unless, in each
case, such Shares are being sold to persons other than an Affiliate of the
Company in a transaction (x) covered by an effective resale registration
statement or (y) exempt from the registration requirements of the
Securities Act (as hereinafter defined), and the Shares are not, when held
by such person, Restricted Securities.
"Securities and Exchange Law" means the Securities and Exchange Law of
Japan (Law No. 25 of 1948), as amended.
"Securities Act" means the U.S. Securities Act of 1933, as amended.
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"Securities Exchange Act" means the U.S. Securities Exchange Act of 1934,
as amended.
"Shares" means the common shares of the Company, having the same rights,
including with respect to distributions, as all other outstanding common
shares of the Company, and, subject to Pre-release, shall include the
rights to receive Shares.
1.2 Interpretation
Unless the context of this Agreement otherwise clearly requires,
references to the plural include the singular and the plural and "or" has
the inclusive meaning represented by the phrase "and/or." The words
"include," "includes," and "including" shall be deemed to be followed by
the phrase "without limitation." The words "hereof," "herein" and
"hereunder" and similar terms in this Agreement refer to this Agreement as
a whole and not to any particular provision of this Agreement. References
to Sections are references to Sections in this Agreement unless otherwise
provided.
2. APPOINTMENT OF DEPOSITARY; FORM OF ADR; TRANSFERABILITY
2.1 Appointment of Depositary
The Company hereby appoints the Depositary as depositary for the Deposited
Securities and hereby authorizes and directs the Depositary to act in
accordance with the terms set forth in this Agreement. Each Holder and
each Beneficial Owner, upon acceptance of any ADSs (or any interest
therein) issued in accordance with the terms of this Agreement, shall be
deemed for all purposes to (a) be a party to and bound by the terms of
this Agreement and (b) appoint the Depositary its attorney-in-fact, with
full power to delegate, to act on its behalf and to take any and all
actions contemplated in this Agreement, to adopt any and all procedures
necessary to comply with applicable law and to take such action as the
Depositary in its sole discretion may deem necessary or appropriate to
carry out the purposes of this Agreement (the taking of such actions to be
the conclusive determinant of the necessity and appropriateness thereof).
2.2 Form of ADR
ADRs shall be substantially in the form of Exhibit A hereto (the "Form of
ADR"), with such changes as may be required by the Depositary or the
Company to comply with their obligations hereunder, any applicable law,
regulation or usage or to indicate any special limitations or restrictions
to which any particular ADRs are subject. ADRs shall be engraved or
printed or otherwise reproduced in accordance with the Depositary's
customary practices or as may be required by any securities exchange on
which the ADSs are listed or admitted for trading. ADRs shall be executed
by the manual or facsimile signature of a duly authorised signatory of the
Depositary, which signature shall bind the Depositary, notwithstanding
that such signatory has ceased to hold such authority prior to the
delivery of such ADRs.
2.3 Transferability
Subject to the limitations contained herein and in the Form of ADR, title
to an ADR (and to the ADSs evidenced thereby), when properly endorsed (in
the case of certificated ADRs) or upon delivery to the Depositary of
proper instruments of transfer, shall be transferable by delivery with the
same effect as in the case of a negotiable instrument under the laws of
the State of New York; provided, however, that the Depositary,
notwithstanding any notice to the contrary, may treat the Holder thereof
as the absolute owner thereof for the purpose of determining the person
entitled to distribution of dividends or other distributions or to any
notice provided for in this Agreement and for all other purposes and
neither the Depositary nor the Company will have any obligation or be
subject to any liability under this Agreement to any holder of a Receipt,
unless such holder is the Holder thereof.
-3-
3. DEPOSIT OF SHARES
3.1 Deposit with Custodian
Subject to the terms and conditions of this Agreement, the Depositary
shall issue ADRs for delivery at the Depositary's Office against delivery
or transfer to the Custodian of: (a) Shares by credit to the account of
the Custodian with JASDEC; or (b) subject to the provisions of Section 4.3
below, rights to receive Shares. ADRs issued upon the deposit of rights to
receive Shares in accordance with clause (b) of this Section 3.1 are
hereinafter referred to as "Pre-released ADRs", and each such issuance as
a "Pre-release", until such time as Shares are deposited with the
Custodian in accordance with clause (a) of this Section 3.1. In connection
with any such deposit, the Depositary or the Custodian may require a
written order from the person making such deposit specifying the person or
persons in whose name the ADRs are to be issued (a "Delivery Order").
Every deposit of Shares shall be accompanied by the following: (A) (i) in
the case of Shares issued in certificated form, the certificates
representing such Shares and (ii) in the case of Shares delivered by
book-entry transfer, confirmation of such book-entry transfer to the
Custodian or that irrevocable instructions have been given to cause such
Shares to be so transferred, (B) such certifications and payments
(including, without limitation, any applicable taxes and governmental
charges and the Depositary's fees, and related charges in accordance with
Exhibit B) and evidence of such payments (including, without limitation,
stamping or otherwise marking such Shares by way of receipt) as may be
required by the Depositary, Custodian or JASDEC, as the case may be, in
accordance with the provisions of this Agreement, (C) if the Depositary so
requires, a Delivery Order, (D) evidence satisfactory to the Depositary
(which may include an opinion of counsel reasonably satisfactory to the
Depositary provided at the cost of the person seeking to deposit Shares)
that all conditions to such deposit have been met and all necessary
approvals have been granted by, and there has been compliance with the
rules and regulations of, any applicable governmental agency in Japan, and
(E) if the Depositary so requires, (i) an agreement, assignment or
instrument satisfactory to the Depositary or the Custodian which provides
for the prompt transfer by any person in whose name the Shares are or have
been recorded to the Custodian of any distribution, or right to subscribe
for additional Shares or to receive other property in respect of any such
deposited Shares or, in lieu thereof, such indemnity or other agreement as
shall be satisfactory to the Depositary or the Custodian and (ii) if the
Shares are registered in the name of the person on whose behalf they are
presented for deposit, a proxy or proxies entitling the Custodian to
exercise voting rights in respect of the Shares for any and all purposes
until the Shares so deposited are registered in the name of the
Depositary, the Custodian or any nominee. No Share shall be accepted for
deposit unless accompanied by confirmation or such additional evidence, if
any is required by the Depositary, that is reasonably satisfactory to the
Depositary or the Custodian that all conditions to such deposit have been
satisfied by the person depositing such Shares under the laws and
regulations of Japan and any necessary approval has been granted by any
governmental body in Japan, if any, which is then performing the function
of the regulator of currency exchange. The Depositary may issue Receipts
against evidence of rights to receive Shares from the Company, JASDEC, the
Foreign Registrar, any agent of the Company or any custodian, registrar,
transfer agent, clearing agency or other entity involved in ownership or
transaction records in respect of the Shares. Without limitation of the
foregoing, the Depositary shall not knowingly accept for deposit under
this Agreement any Shares required to be registered under the provisions
of the Securities Act, unless a registration statement is in effect as to
such Shares. The Depositary will use commercially reasonable efforts to
comply with reasonable written instructions of the Company that the
Depositary shall not accept for deposit hereunder any Shares specifically
identified in such instructions at such times and under such circumstances
as may reasonably be specified in such instructions in order to facilitate
the Company's compliance with the securities laws in the United States.
As soon as practicable after receipt of any permitted deposit of Shares
hereunder and compliance with the provisions of this Agreement, the
Custodian shall present the Shares so
-4-
deposited, together with the appropriate instrument or instruments of
transfer or endorsement, duly stamped, to the Foreign Registrar for
transfer and registration of the Shares (as soon as transfer and
registration can be accomplished and at the expense of the person for whom
the deposit is made) in the name of the Depositary, the Custodian or a
nominee of either. Deposited Securities shall be held by the Depositary or
by a Custodian for the account and to the order of the Depositary or a
nominee, in each case for the account of the Holders and Beneficial
Owners, at such place or places as the Depositary or the Custodian shall
determine.
In the event any Shares are deposited which entitle the holders thereof to
receive a per-share distribution or other entitlement in an amount
different from the Shares then on deposit, the Depositary is authorized to
take any and all actions as may be necessary (including, without
limitation, making the necessary notations on ADRs) to give effect to the
issuance of such ADSs and to ensure that such ADSs are not fungible with
other ADSs issued hereunder until such time as the entitlement of the
Shares represented by such non-fungible ADSs equals that of the Shares
represented by ADSs prior to the deposit of such non-fungible Shares. The
Company agrees to give timely written notice to the Depositary if any
Shares issued or to be issued contain rights different from those of any
other Shares theretofore issued and shall assist the Depositary with the
establishment of procedures enabling the identification of such
non-fungible Shares upon delivery to the Custodian.
3.2 Representations
Every person depositing Shares hereunder is deemed to represent and
warrant that (i) such Shares are duly authorized, validly issued and
outstanding, fully paid, nonassessable and were legally obtained, (ii)
such Shares were not acquired in violation of any pre-emptive rights,
(iii) the person making such deposit is duly authorized to do so, (iv)
such Shares are free and clear of any lien, encumbrance, security
interest, charge, mortgage or adverse claim, (v) such Shares have not been
stripped of any rights or entitlements, and (vi) such Shares (a) are not
"restricted securities" as such term is defined in Rule 144 under the
Securities Act and may be offered or sold in the United States in
transactions that are exempt from registration under the Securities Act or
(b) have been registered under the Securities Act. Such representations
and warranties shall survive the deposit of Shares and issuance of ADRs.
3.3 Holding of Deposited Securities
Deposited Securities shall be held by the Custodian for and to the order
of the Depositary on behalf of the Holders and the Beneficial Owners.
Shares and other Deposited Securities eligible for deposit with JASDEC
shall be held by the Custodian at its account at JASDEC. Deposited
Securities may be delivered by the Depositary or the Custodian to any
person only under the circumstances expressly contemplated in this
Agreement.
3.4 Treatment as a Legal Owner
Notwithstanding anything herein to the contrary, the Company will, for all
purposes, treat the Depositary, in its capacity as such, as the legal
owner of all Deposited Securities.
4. ISSUE OF ADRs
4.1 Issuance
After any deposit of Shares or rights to receive Shares in accordance with
Section 3.1, together with any other documents required by the Depositary
in accordance with this Agreement, the Custodian shall as promptly as
practicable notify the Depositary of such deposit and of the information
contained in any Delivery Order. Such notice shall be given in writing,
either by letter, airmail, postage prepaid, or, at the request, risk and
expense of the person making the
-5-
deposit, by telex or facsimile or electronic transmission. After receiving
such notice from the Custodian, the Depositary, subject to this Agreement,
shall as promptly as practicable execute and deliver at the Depositary's
Office, to or upon the order of the person named in such notice, ADRs
registered as requested and evidencing the aggregate number of ADSs to
which such person is entitled. ADRs shall be issued only in denominations
of any whole numbers of ADSs. At the request, risk and expense of the
person depositing Shares or rights to receive Shares, the Depositary may
deliver ADRs at a place other than the Depositary's Office. ADRs may be
issued by the Depositary only under the circumstances expressly
contemplated in this Agreement. Nothing herein shall prohibit any
Pre-Release upon the terms set forth in this Agreement.
4.2 Issuance of Additional Shares
The Company agrees that in the event it proposes (i) an issuance, sale or
distribution of additional Shares, (ii) an offering of rights to subscribe
for Shares or other Deposited Securities, (iii) an issuance of securities
convertible into or exchangeable for Shares, (iv) an issuance of rights to
subscribe for securities convertible into or exchangeable for Shares, (v)
an elective dividend of cash or Shares, (vi) a redemption of Deposited
Securities or (vii) any reclassification, merger, consolidation or
transfer of assets within the meaning of Rule 145 under the Securities
Act, or any meeting of holders of Deposited Securities, or solicitation of
consents or proxies in relation thereto (the "Transactions"), it will take
all steps necessary to ensure that (1) such Transaction does not violate
the registration requirements of the Securities Act, or any other
applicable laws (including, without limitation, the Investment Company Act
of 1940, as amended, the Securities Exchange Act or the securities laws of
any of the states of the United States), (2) such Transaction does not
violate the laws or regulations of Japan or the Company's Articles of
Incorporation and (3) all requisite regulatory consents and approvals have
been obtained in Japan. If, being advised by counsel, the Company
determines that such Transaction is required to be registered under the
Securities Act, the Company will either (i) register such Transaction to
the extent necessary, (ii) alter the terms of such Transaction so that the
registration requirements of the Securities Act do not apply or (iii)
direct the Depositary to take specific measures, in each case as
contemplated in this Agreement, to prevent such Transaction from violating
the registration requirements of the Securities Act. The Depositary shall
not have any obligation to deposit or distribute additional Shares, rights
to subscribe for Shares or Deposited Securities, securities convertible
into or exchangeable for Shares or rights to subscribe for such securities
issued or distributed by the Company in a Transaction unless it has
received evidence reasonably satisfactory to it that with respect to such
Transaction a registration statement has been declared effective or such
Transaction is exempt from the registration requirements of the Securities
Act and is in accordance with all applicable laws or regulations.
The Company agrees with the Depositary that neither the Company nor any of
its Affiliates will at any time (i) deposit any Shares or other Deposited
Securities, either upon original issuance or upon a sale of Shares or
other Deposited Securities previously issued and reacquired by the Company
or by any such Affiliate, or (ii) issue additional Shares, rights to
subscribe for such Shares, securities convertible into or exchangeable for
Shares or rights to subscribe for such securities, unless such transaction
and the securities issuable in such transaction are exempt from
registration under the Securities Act or have been registered under the
Securities Act (and such registration statement has been declared
effective).
Notwithstanding anything else contained in this Agreement, nothing in this
Agreement shall be deemed to obligate the Company to file any registration
statement in respect of any proposed transaction.
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4.3 Pre-Release
Unless requested in writing by the Company to cease doing so, the
Depositary may, notwithstanding Section 4.1 above, execute and deliver
ADRs prior to the receipt of Shares pursuant to Section 3 above. The
Depositary may deliver Shares upon the receipt and cancellation of
Pre-released ADRs, whether or not such cancellation is prior to the
termination of such Pre-release or the Depositary knows that such ADR has
been Pre-released. The Depositary may receive ADRs in lieu of Shares in
satisfaction of a Pre-release. Each Pre-released ADR will be (a) preceded
or accompanied by a written representation and agreement from the person
to whom ADRs are to be delivered (the "Applicant") that the Applicant, or
its customer, (i) owns the Shares or ADRs to be remitted, as the case may
be, (ii) transfers all beneficial right, title and interest in such Shares
or ADRs, as the case may be, to the Depositary in its capacity as such and
for the benefit of the Holders, and (iii) will not take any action with
respect to such Shares or ADRs, as the case may be, that is inconsistent
with the transfer of ownership (including, without the consent of the
Depositary, disposing of Shares or ADRs, as the case may be, other than in
satisfaction of such Pre-release), (b) at all times fully collateralized
with cash, U.S. government securities or such other collateral as the
Depositary determines, in good faith, will provide substantially similar
liquidity and security, (c) terminable by the Depositary on not more than
five business days notice, and (d) subject to such further indemnities and
credit regulations as the Depositary deems appropriate. The number of
Shares not deposited but represented by ADSs outstanding at any time as a
result of Pre-releases will not normally exceed 30% of the Shares
deposited hereunder; provided, however, that the Depositary reserves the
right to disregard such limit from time to time as it deems reasonably
appropriate, and may, with the prior written consent of the Company,
change such limit for purposes of general application. The Depositary will
also set U.S. dollar limits with respect to Pre-release transactions to be
entered into hereunder with any particular Pre-release on a case-by-case
basis as the Depositary deems appropriate. For the purposes of enabling
the Depositary to fulfil its obligations to the Holders under this
Agreement, the collateral referred to in clause (b) above shall be held by
the Depositary as security for the performance of the Applicant's
obligation to deliver Shares or ADRs upon termination of a Pre-release
transaction (and shall not, for the avoidance of doubt, constitute
Deposited Securities hereunder). The Depositary may retain for its own
account any compensation received by it in connection with the foregoing.
5. TRANSFER, COMBINATION AND SPLIT-UP OF ADRS; SUBSTITUTION OF ADRS;
CANCELLATION AND DESTRUCTION OF ADRS; MAINTENANCE OF RECORDS
5.1 Transfer, Combination and Split-up of ADRs
Subject to the terms and conditions of this Agreement, the Depositary
shall, upon surrender of an ADR or ADRs in form satisfactory to the
Depositary at the Depositary's Office (a) for the purpose of transfer, if
such ADRs are accompanied by such instruments of transfer as the
Depositary may require and are stamped as may be required by law, register
the transfer of such ADRs on the Register and execute and deliver new ADRs
to or upon the order of the person entitled thereto; and (b) for the
purpose of effecting a split-up or combination, execute and deliver a new
ADR or ADRs in such denominations as may be requested, evidencing the same
aggregate number of ADRs as the ADRs surrendered.
5.2 Substitution of ADRs
The Depositary shall execute and deliver a new ADR of like tenor in
exchange and substitution for any mutilated ADR upon cancellation thereof
or in substitution for a destroyed, lost or stolen ADR, upon payment of
applicable fees, costs and expenses, unless the Depositary has notice that
such ADR has been acquired by a bona fide purchaser, upon the Holder
thereof filing with the Depositary a request for such execution and
delivery and a sufficient indemnity
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bond (for the benefit of the Depositary and the Company) and satisfying
any other reasonable requirements imposed by the Depositary.
At the request of a Holder, the Depositary shall, for the purpose of
substituting a certificated Receipt with a Receipt issued through
DRS/Profile, or vice versa, execute and deliver a certificated Receipt or
DRS/Profile statement, as the case may be, for any authorized number of
ADSs requested, evidencing the same aggregate number of ADSs as those
evidenced by the certificated Receipt or DRS/Profile statement, as the
case may be, substituted.
5.3 Cancellation and Destruction of ADRs
The Depositary shall cancel all ADRs surrendered to it. The Depositary is
authorized to destroy ADRs so cancelled in accordance with customary
practices of stock transfer agents in The City of New York. Cancelled ADRs
shall not be entitled to any benefits under this Agreement or be valid or
obligatory for any purpose.
5.4 Maintenance of Records
The Depositary shall maintain records of all ADRs surrendered and
Deposited Securities withdrawn under Section 5.5, transfer of ADRs,
substitute ADRs delivered, and cancelled or destroyed ADRs under this
Section 5, in keeping with the procedures ordinarily followed by stock
transfer agents located in The City of New York or as required by
applicable law or regulation.
5.5 Surrender of Receipts and Withdrawal of Deposited Securities
Upon surrender, at the Depositary's Office, of ADSs for the purpose of
withdrawal of the Deposited Securities represented thereby, and upon
payment of (i) the fees and charges of the Depositary for the making of
withdrawals of Deposited Securities and cancellation of ADRs (as set forth
in Exhibit B) and (ii) all applicable taxes and governmental charges
payable in connection with such surrender and withdrawal, and subject to
the terms and conditions of this Agreement, the Company's Articles of
Incorporation, and any other provisions of or governing the Deposited
Securities and other applicable laws, the Holder of such ADSs shall be
entitled to delivery, to him or upon his order, of the Deposited
Securities at the time represented by the ADSs so surrendered. ADSs may be
surrendered for the purpose of withdrawing Deposited Securities by
delivery of an ADR evidencing such ADSs (if held in certificated form) or
by book-entry delivery of such ADSs to the Depositary.
A Receipt surrendered for such purposes shall, if so required by the
Depositary, be properly endorsed in blank or accompanied by proper
instruments of transfer in blank, and if the Depositary so requires, the
Holder thereof shall execute and deliver to the Depositary a written order
directing the Depositary to cause the Deposited Securities being withdrawn
to be delivered to or upon the written order of a person or persons
designated in such order. Thereupon, the Depositary shall direct the
Custodian to deliver (without unreasonable delay) at the designated office
of the Custodian or through a book entry delivery of the Shares (in either
case, subject to Section 5.6, Exhibit B, and to the other terms and
conditions of this Agreement, to the Company's Articles of Incorporation,
to the provisions of or governing the Deposited Securities and to
applicable laws, now or hereafter in effect) to or upon the written order
of the person or persons designated in the order delivered to the
Depositary as provided above, the Deposited Securities represented by such
ADSs, together with any certificate or other proper documents of or
relating to title of the Deposited Securities as may be legally required,
as the case may be, to or for the account of such person.
The Depositary may, in its discretion, refuse to accept for surrender a
number of ADSs representing a number other than a whole number of Shares.
In the case of surrender of an
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ADR evidencing a number of ADSs representing other than a whole number of
Shares, the Depositary shall cause ownership of the appropriate whole
number of Shares to be delivered in accordance with the terms hereof, and
shall, at the discretion of the Depositary, either (i) issue and deliver
to the person surrendering such Receipt a new Receipt evidencing ADSs
representing any remaining fractional Share, or (ii) sell or cause to be
sold the fractional Shares represented by the Receipt surrendered and
remit the proceeds of such sale (net of applicable (a) fees and charges
of, and expenses incurred by, the Depositary and (b) taxes and other
governmental charges) to the person surrendering the Receipt.
At the request, risk and expense of any Holder so surrendering an ADR, and
for the account of such Holder, the Depositary shall direct the Custodian
to forward (to the extent permitted by law) any cash or other property
(other than securities) held in respect of, and any certificate or
certificates and other proper documents of or relating to title to, the
Deposited Securities represented by such ADR to the Depositary for
delivery at the Depositary's Office, and for further delivery to such
Holder. Such direction shall be given by letter or, at the request, risk
and expense of such Holder, by cable, telex or facsimile transmission.
Upon receipt by the Depositary, the Depositary may make delivery to such
person or persons entitled thereto at the Depositary's Office of any
dividends or cash distributions with respect to the Deposited Securities
represented by such ADSs, or of any proceeds of sale of any dividends,
distributions or rights, which may at the time be held by the Depositary.
5.6 Limitations on Execution and Delivery, Transfer, Etc. of Receipts;
Suspension of Delivery, Transfer, Etc.
As a condition precedent to the execution and delivery, registration,
registration of transfer, split-up, combination or surrender of any ADR,
the delivery of any distribution thereon or withdrawal of any Deposited
Securities, the Depositary or the Custodian may require (i) payment from
the depositor of Shares or presenter of the ADR of a sum sufficient to
reimburse it for any tax or other governmental charge and any stock
transfer or registration fee with respect thereto (including any such tax
or charge and fee with respect to Shares being deposited or withdrawn) and
payment of any applicable fees and charges of the Depositary as provided
in Exhibit B, (ii) the production of proof satisfactory to it as to the
identity and genuineness of any signature or any other matter contemplated
by Section 14.5 and (iii) compliance with (A) any laws or governmental
regulations relating to the execution and delivery of ADRs or ADSs or to
the withdrawal or delivery of Deposited Securities and (B) such reasonable
regulations as the Depositary may establish consistent with the provisions
of this Agreement and applicable law.
The issuance of ADSs against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the issuance of ADSs
against the deposit of particular Shares may be withheld, or the
registration of transfer of ADRs in particular instances may be refused,
or the registration of transfers of ADRs generally may be suspended,
during any period when the transfer books of the Depositary are closed or
if any such action is deemed necessary or advisable by the Depositary or
the Company, in good faith, at any time or from time to time because of
any requirement of law, any government or governmental body or commission
or any securities exchange on which the Receipts or Shares are listed, or
under any provision of this Agreement or provisions of, or governing, the
Deposited Securities, or any meeting of shareholders of the Company or for
any other reason, subject, in all cases, to Section 16 hereof.
6. DISTRIBUTIONS; CONVERSION OF FOREIGN CURRENCY; WITHHOLDING
6.1 Cash Distributions
Whenever the Depositary receives confirmation from the Custodian of
receipt of any cash dividend or other cash distribution on any Deposited
Securities, or receives proceeds from the sale of any Shares, rights,
securities or other entitlements under the terms hereof, the
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Depositary will, if at the time of receipt thereof any amounts received in
a foreign currency can in the judgment of the Depositary (pursuant to
Section 6.7) be converted on a practicable basis into Dollars transferable
to the United States, promptly convert or cause to be converted such cash
dividend, distribution or proceeds into Dollars (on the terms described in
Section 6.7) and will distribute promptly the amount thus received (net of
applicable (a) fees and charges of, and expenses incurred by, the
Depositary and (b) taxes and other governmental charges) to the Holders of
record as of the ADS Record Date in proportion to the number of ADSs held
by such Holders respectively as of the ADS Record Date. The Depositary
shall distribute only such amount, however, as can be distributed without
attributing to any Holder a fraction of one cent. Any such fractional
amounts shall be rounded to the nearest whole cent and so distributed to
Holders entitled thereto. Holders and Beneficial Owners understand that in
converting foreign currency, amounts received on conversion are calculated
at a rate which exceeds three or four decimal places (the number of
decimal places used by the Depositary to report distribution rates). Any
excess amount may be retained by the Depositary as an additional cost of
conversion, irrespective of any other fees and expenses payable or owing
hereunder and shall not be subject to escheatment. If the Company, the
Custodian or the Depositary is required to withhold and does withhold from
any cash dividend or other cash distribution in respect of any Deposited
Securities an amount on account of taxes, duties or other governmental
charges, the amount distributed to Holders on the ADSs representing such
Deposited Securities shall be reduced accordingly. Such withheld amounts
shall be forwarded by the Company, the Custodian or the Depositary to the
relevant governmental authority. Evidence of payment thereof by the
Company shall be forwarded by the Company to the Depositary upon request.
The Depositary will forward to the Company or its agent such information
from its records as the Company may reasonably request to enable the
Company or its agent to file with governmental agencies such reports that
are necessary to obtain benefits under the applicable tax treaties for the
Holders and Beneficial Owners of Receipts.
6.2 Distribution in Shares
If any distribution upon any Deposited Securities consists of free
distribution of Shares (in the form of a stock split or otherwise), the
Company shall cause such Shares to be deposited with the Custodian and
registered, as the case may be, in the name of the Depositary, the
Custodian or any of their nominees. Upon receipt of confirmation of such
deposit from the Custodian, the Depositary shall establish the ADS Record
Date upon the terms described in Section 6.5 and shall, subject to Exhibit
B hereof, either (i) distribute to the Holders as of the ADS Record Date
in proportion to the number of ADSs held as of the ADS Record Date,
additional ADSs, which represent in the aggregate the number of Shares
received as such dividend, or free distribution, subject to the other
terms of this Agreement (including, without limitation, applicable (a)
fees and charges of, and expenses incurred by, the Depositary and (b)
taxes and other governmental charges), or (ii) if additional ADSs are not
so distributed, each ADS issued and outstanding after the ADS Record Date
shall, to the extent permissible by law, thenceforth also represent rights
and interests in the additional Shares distributed upon the Deposited
Securities represented thereby (net of applicable (a) fees and charges of,
and expenses incurred by, the Depositary and (b) taxes and other
governmental charges). In lieu of delivering fractional ADSs, the
Depositary shall sell the number of Shares represented by the aggregate of
such fractions and distribute the proceeds upon the terms described in
Section 6.1. The Depositary may withhold any such distribution of Receipts
if it has not received satisfactory assurances from the Company that such
distribution is registered under the Securities Act or is exempt from the
registration requirements of the Securities Act. To the extent such
distribution may be withheld, the Depositary may dispose of all or a
portion of such distribution in such amounts and in such manner, including
by public or private sale, as the Depositary deems necessary and
practicable, and the Depositary shall distribute the net proceeds of any
such sale (after deduction of applicable (a) fees and charges of, and
expenses incurred by, the Depositary and (b) taxes and other governmental
charges) to Holders entitled thereto upon the terms described in Section
6.1.
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6.3 Distribution of Rights to Purchase Shares
(a) Distribution to ADS Holders. Whenever the Company intends to
distribute to the holders of the Deposited Securities rights to
subscribe for additional Shares, the Company shall give notice
thereof to the Depositary at least 60 days prior to the proposed
distribution stating whether or not it wishes such rights to be made
available to Holders. Upon receipt of a notice indicating that the
Company wishes such rights to be made available to Holders, the
Depositary shall consult with the Company to determine, and the
Company shall determine, whether it is lawful and reasonably
practicable to make such rights available to the Holders. The
Depositary shall make such rights available to Holders only if (i)
the Company shall have timely requested that such rights be made
available to Holders, (ii) the Depositary shall have received
satisfactory documentation within the terms of Section 4.2, and
(iii) the Depositary shall have determined that such distribution of
rights is lawful and reasonably practicable. In the event any of the
conditions set forth above are not satisfied, the Depositary shall
proceed with the sale of the rights as contemplated in Section
6.3(b) or, if timing or market conditions may not permit, do nothing
thereby allowing such rights to lapse. In the event all conditions
set forth above are satisfied, the Depositary shall establish an ADS
Record Date (upon the terms described in Section 6.5) and establish
procedures (x) to distribute such rights (by means of warrants or
otherwise) and (y) to enable the Holders to exercise the rights
(upon payment of applicable (a) fees and charges of, and expenses
incurred by, the Depositary and (b) taxes and other governmental
charges). Nothing herein shall obligate the Depositary to make
available to the Holders a method to exercise such rights to
subscribe for Shares (rather than ADSs).
(b) Sale of Rights. If (i) the Company does not timely request the
Depositary to make the rights available to Holders or requests that
the rights not be made available to Holders, (ii) the Depositary
fails to receive satisfactory documentation within the terms of
Section 4.2 or determines it is not lawful or reasonably practicable
to make the rights available to Holders, or (iii) any rights made
available are not exercised and appear to be about to lapse, the
Depositary shall determine whether it is lawful and reasonably
practicable to sell such rights, in a riskless principal capacity or
otherwise, at such place and upon such terms (including public or
private sale) as it may deem proper. The Company shall assist the
Depositary to the extent necessary to determine such legality and
practicability. The Depositary shall, upon such sale, convert and
distribute proceeds of such sale (net of applicable (a) fees and
charges of, and expenses incurred by, the Depositary and (b) taxes
and other governmental charges) upon the terms set forth in Section
6.1.
(c) Lapse of Rights. If the Depositary is unable to make any rights
available to Holders upon the terms described in Section 6.3(a) or
to arrange for the sale of the rights upon the terms described in
Section 6.3(b), the Depositary shall allow such rights to lapse.
The Depositary shall not be responsible for (i) any failure to determine
that it may be lawful or practicable to make such rights available to
Holders in general or any Holders in particular, (ii) any foreign exchange
exposure or loss incurred in connection with such sale, or exercise, or
(iii) the content of any materials forwarded to the Holders on behalf of
the Company in connection with the rights distribution.
Notwithstanding anything to the contrary in this Section 6.3, if
registration (under the Securities Act or any other applicable law) of the
rights or the securities to which any rights relate may be required in
order for the Company to offer such rights or such securities to Holders
and to sell the securities represented by such rights, the Depositary will
not distribute such rights to the Holders unless and until a registration
statement under the Securities Act covering such
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offering is in effect or the offering and sale of such securities to
Holders and Beneficial Owners are exempt from, or do not require
registration under, the provisions of the Securities Act or any other
applicable laws. In the event that the Company, the Depositary or the
Custodian shall be required to withhold and does withhold from any
distribution of property (including rights) an amount on account of taxes
or other governmental charges, the amount distributed to the Holders shall
be reduced accordingly. In the event that the Depositary determines that
any distribution in property (including Shares and rights to subscribe
therefor) is subject to any tax or other governmental charges which the
Depositary is obligated to withhold, the Depositary may dispose of all or
a portion of such property (including Shares and rights to subscribe
therefor) in such amounts and in such manner, including by public or
private sale, as the Depositary deems necessary and practicable to pay any
such taxes or charges.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to exercise rights on the same
terms and conditions as the holders of Shares or be able to exercise such
rights. Nothing herein shall obligate the Company to file any registration
statement in respect of any rights or Shares or other securities to be
acquired upon the exercise of such rights.
6.4 Distributions Other Than Cash, Shares or Rights to Purchase Shares
(a) Whenever the Company intends to distribute to the holders of
Deposited Securities property other than cash, Shares or rights to
purchase additional Shares, the Company shall give notice thereof to
the Depositary at least 30 days prior to the proposed distribution
and shall indicate whether or not it wishes such distribution to be
made to Holders. Upon receipt of a notice indicating that the
Company wishes such distribution be made to Holders, the Depositary
shall determine whether such distribution to Holders is lawful and
reasonably practicable. The Depositary shall not make such
distribution unless (i) the Company shall have timely requested the
Depositary to make such distribution to Holders, (ii) the Depositary
shall have received satisfactory documentation within the terms of
Section 4.2, and (iii) the Depositary shall have determined that
such distribution is lawful and reasonably practicable.
(b) Upon receipt of satisfactory documentation and the request of the
Company to distribute property to Holders and after making the
requisite determinations set forth in (a) above, the Depositary may
distribute the property so received to the Holders of record as of
the ADS Record Date, in proportion to the number of ADSs held by
such Holders respectively and in such manner as the Depositary may
deem practicable for accomplishing such distribution (i) upon
receipt of payment or net of the applicable fees and charges of, and
expenses incurred by, the Depositary, and (ii) net of any taxes and
other governmental charges withheld. The Depositary may dispose of
all or a portion of the property so distributed and deposited, in
such amounts and in such manner (including public or private sale)
as the Depositary may deem practicable or necessary to satisfy any
taxes (including applicable interest and penalties) or other
governmental charges applicable to the distribution.
(c) If (i) the Company does not request the Depositary to make such
distribution to Holders or requests not to make such distribution to
Holders, (ii) the Depositary does not receive satisfactory
documentation within the terms of Section 4.2, or (iii) the
Depositary determines that all or a portion of such distribution is
not reasonably practicable or feasible, the Depositary shall
endeavor to sell or cause such property to be sold in a public or
private sale, at such place or places and upon such terms as it may
deem proper and shall distribute the net proceeds, if any, of such
sale received by the Depositary (net of applicable (a) fees and
charges of, and expenses incurred by, the Depositary and (b) taxes
and other governmental charges) to the Holders as of the ADS Record
Date upon the terms of Section 6.1. If the Depositary is unable to
sell such
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property, the Depositary may dispose of such property in any way it
deems reasonably practicable under the circumstances for nominal or
no consideration and Holders and Beneficial Owners shall have no
rights thereto or arising therefrom.
6.5 Fixing of Record Date
Whenever necessary in connection with any distribution (whether in cash,
Shares, rights, or other distribution), or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by
each ADS, or whenever the Depositary shall receive notice of any meeting
of or solicitation of holders of Shares or other Deposited Securities, or
whenever the Depositary shall find it necessary or convenient, the
Depositary shall fix a record date after consultation with the Company
(the "ADS Record Date"), as close as practicable to the record date fixed
by the Company with respect to the Shares, for the determination of the
Holders who shall be entitled to receive such distribution, to give
instructions for the exercise of voting rights at any such meeting, or to
give or withhold such consent, or to receive such notice or solicitation
or to otherwise take action, or to exercise the rights of Holders with
respect to such changed number of Shares represented by each ADS. Subject
to applicable law and the provisions of Section 6.1 through 6.4 and to the
other terms and conditions of this Agreement, only the Holders of record
at the close of business in New York on such ADS Record Date shall be
entitled to receive such distribution, to give such voting instructions,
to receive such notice or solicitation, or otherwise take action.
6.6 Voting of Deposited Shares
As soon as practicable after receipt of notice of any meeting at which the
holders of Shares are entitled to vote, or of solicitation of consents or
proxies from holders of Shares or other Deposited Securities, the
Depositary shall, if requested by the Company in writing in a timely
manner (the Depositary having no obligation to take any further action if
the request shall not have been received by the Depositary at least 14
days prior to the date of such vote or meeting) and at the Company's
expense and provided no U.S. legal prohibitions exist, mail by regular,
ordinary mail delivery or otherwise distribute to Holders as of the ADS
Record Date: (a) such notice of meeting or solicitation of consent or
proxy; (b) a statement that the Holders at the close of business on the
ADS Record Date will be entitled, subject to any applicable law, the
Company's Articles of Incorporation and the provisions of or governing the
Deposited Securities (which provisions, if any, shall be summarized in
pertinent part by the Company), to instruct the Depositary as to the
exercise of the voting rights, if any, pertaining to the Shares or other
Deposited Securities represented by such Holder's ADSs; and (c) a brief
statement as to the manner in which such instructions may be given. Voting
instructions may be given only in respect of a number of ADSs representing
an integral number of Shares or other Deposited Securities. Upon the
timely receipt of written instructions of a Holder of ADSs on the ADS
Record Date of voting instructions in the manner specified by the
Depositary, the Depositary shall endeavor, insofar as practicable and
permitted under applicable law, the provisions of this Agreement, the
Company's Articles of Incorporation and the provisions of or governing the
Deposited Securities, to vote or cause the Custodian to vote the Shares
and/or other Deposited Securities (in person or by proxy) represented by
ADSs evidenced by such Receipt in accordance with such voting
instructions. Neither the Depositary nor the Custodian shall, under any
circumstances exercise any discretion as to voting.
To the extent such instructions are not so received by the Depositary from
any Holder, the Depositary shall deem such Holder to have so instructed
the Depositary to give a discretionary proxy to a person designated by the
Company and the Depositary shall, insofar as practicable, give a
discretionary proxy to a person designated by the Company to vote the
Deposited Securities represented by the ADSs evidenced by such Holder's
ADRs as to which such instructions are deemed to have been so given,
provided that no such instruction shall be deemed given and no
discretionary proxy shall be given with respect to any matter (w) if not
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permitted under applicable law, the Company's Articles of Incorporation or
the provisions of or governing the Deposited Securties, (x) if the Company
does not wish such proxy to be given, (y) if there is substantial
opposition to such matter or (z) if such matter materially adversely
affects the rights of holders of Shares.
Notwithstanding any other provision of this Agreement, save for applicable
provisions of Japanese law, and in accordance with the terms of Section
10, the Depositary shall not be liable (i) for any failure to carry out
any instructions to vote any of the Deposited Securities or (ii) for any
action or inaction (including any deemed action or inaction) or the
consequences thereof, contemplated by the immediately preceding paragraph.
6.7 Conversion of Foreign Currency
Upon receipt by the Depositary or the Custodian of any foreign currency,
if at the time of its receipt such foreign currency can in the judgment of
the Depositary be converted on a reasonable basis into U.S. dollars and
the resulting U.S. dollars transferred to the United States, the
Depositary shall as promptly as practicable (and in any event within on
Business Day) convert or cause to be converted, such foreign currency into
U.S. dollars, and shall distribute such U.S. dollars to the Holders
entitled thereto in accordance with Sections 6.1 to 6.4. If such
conversion or distribution can be effected only with the approval or
license of any government or agency thereof, the Depositary shall file
such application for approval or license as it may deem in its reasonable
judgment desirable. If the Depositary determines that such foreign
currency is not convertible, in whole or in part, on a reasonable basis
into U.S. dollars transferable to the United States, or if any approval or
license which is required for such conversion is denied or in the opinion
of the Depositary is not obtainable or is not obtained within a reasonable
period or at a reasonable cost, the Depositary may distribute all or part
of the foreign currency (or an appropriate document evidencing the right
to receive such foreign currency) to, or in its discretion may hold such
foreign currency uninvested and without liability for interest thereon for
the respective accounts of the Holders entitled thereto. Each Holder
agrees that in converting Foreign Currency, amounts received on conversion
are calculated at a rate which may exceed the number of decimal places
used by the Depositary to report distribution rates (which in any case
will not be less than two decimal places). Any excess amount may be
retained by the Depositary as an additional cost of conversion,
irrespective of any other fees and expenses payable or owing hereunder and
shall not be subject to escheatment. All expenses of any such conversion
shall be deducted from the proceeds thereof.
6.8 Withholding
In connection with any distribution on the Deposited Securities, each of
the Company, the Depositary and the Custodian shall remit to the
appropriate governmental authority such amounts (if any) as may be
required by law to withhold and pay to such authority. The Depositary
shall forward to the Company in a timely fashion such information from its
records as the Company may reasonably request to enable the Company to
file necessary reports with governmental authorities. The Depositary shall
make reasonable efforts to establish and maintain arrangements that assist
Beneficial Owners in claiming any tax refunds, credits or other benefits
(pursuant to treaty or otherwise) relating to distributions on the ADSs.
The Depositary shall provide copies of any filing that it makes in
conjunction with any such arrangements to the Company. The Company shall
provide such cooperation in establishing and maintaining any such
arrangements as the Depositary may reasonably request.
If any present or future tax or other governmental charge shall become
payable by the Depositary or the Custodian with respect to any ADR or any
Deposited Securities or ADSs, such tax or other governmental charge shall
be payable by the Holders and Beneficial Owners to the Depositary and such
Holders and Beneficial Owners shall be deemed liable therefor. The
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Company, the Custodian and/or the Depositary may withhold or deduct from
any distributions made in respect of Deposited Securities and may sell for
the account of a Holder and/or Beneficial Owner any or all of the
Deposited Securities and apply such distributions and sale proceeds in
payment of such taxes (including applicable interest and penalties) or
charges, with the Holder and the Beneficial Owner remaining fully liable
for any deficiency. In addition to any other remedies available to it, the
Depositary and the Custodian may refuse the deposit of Shares, and the
Depositary may refuse to issue ADSs, to deliver ADRs, register the
transfer, split-up or combination of ADRs and (subject to Section 16) the
withdrawal of Deposited Securities, until payment in full of such tax,
charge, penalty or interest is received. Every Holder and Beneficial Owner
agrees to indemnify the Depositary, the Company, the Custodian, and each
of their respective agents, officers, directors, employees and Affiliates
for, and to hold each of them harmless from, any claims with respect to
taxes (including applicable interest and penalties thereon) arising from
any tax benefit obtained for such Holder and/or Beneficial Owner. The
obligations of Holders and Beneficial Owners of Receipts under this
Section 6.8 shall survive any transfer of Receipts, any surrender of
Receipts and withdrawal of Deposited Securities, or the termination of
this Agreement.
7. CUSTODIAN
The Depositary shall procure that there is at all times a Custodian. Any
Custodian acting hereunder shall be subject to the direction of the
Depositary and shall be responsible solely to it. The Depositary shall be
responsible for the compliance by each Custodian with the provisions
hereof. The Depositary may, from time to time, appoint one or more agents
to act for it as Custodian hereunder in addition to or in lieu of the
Custodian named in the Form of ADR. Any Custodian may resign from its
duties hereunder upon 30 days' written notice to the Depositary. The
Depositary may discharge any Custodian at any time upon notice to such
Custodian. The Depositary shall promptly instruct any Custodian ceasing to
act as Custodian to deliver all Deposited Securities held by it to a
Custodian continuing to act hereunder and the resignation or discharge of
any Custodian shall not be effective until such Custodian shall have so
delivered all Deposited Securities held by it. Upon the appointment of any
successor depositary, any Custodian then acting hereunder shall, unless
otherwise instructed by the Depositary, continue to be the Custodian of
the Deposited Securities without any further act or writing and shall be
subject to the direction of the successor depositary. The successor
depositary so appointed shall, nevertheless, on the written request of any
Custodian, execute and deliver to such Custodian all such instruments as
may be proper to give to such Custodian full and complete power and
authority to act on the direction of such successor depositary.
8. DEPOSITARY'S AGENTS
The Depositary may perform its obligations hereunder through any agent
appointed by it including, but not limited to, a co-register to register
ADRs and transfers, combinations and split-ups of ADRs and to countersign
ADRs and/or a co-transfer agent for the purpose of effecting transfers,
combinations or split-ups of ADRs at designated offices in addition to the
Depositary's Office. Each agent so appointed by the Depositary shall give
written notice to the Depositary accepting such appointment and shall
agree in writing to be bound by the provisions hereof. Notwithstanding the
foregoing, the Depositary shall remain responsible for the performance of
its obligations hereunder as if no agent were appointed.
9. MAINTENANCE OF OFFICE
Until termination of this Agreement in accordance with its terms, the
Depositary or if a Registrar for the Receipts shall have been appointed,
the Registrar shall maintain in the Borough of Manhattan, the City of New
York, an office and facilities for the execution and delivery,
registration, registration of transfers, combination and split-up of
Receipts, the
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surrender of Receipts and the delivery and withdrawal of Deposited
Securities in accordance with the provisions of this Agreement.
10. STANDARD OF CARE
The Company and the Depositary and their respective agents assume no
obligation and shall not be subject to any liability under this Agreement
or any Receipts to any Holder(s) or Beneficial Owner(s) or other persons,
except in accordance with Section 15, provided, that the Company and the
Depositary and their respective agents agree to perform their respective
obligations specifically set forth in this Agreement or the applicable
ADRs without negligence or willful misconduct. Without limitation of the
foregoing, neither the Depositary, nor the Company, nor any of their
respective controlling persons, or agents, shall be under any obligation
to appear in, prosecute or defend any action, suit or other proceeding in
respect of any Deposited Securities or in respect of the Receipts, which
in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expenses (including fees and disbursements
of counsel) and liabilities be furnished as often as may be required (and
no Custodian shall be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the
Depositary).
The Depositary and its agents shall not be liable for any failure to carry
out any instructions to vote any of the Deposited Securities, or for the
manner in which any vote is cast or the effects of any vote. The
Depositary shall not incur any liability for any failure to determine that
any distribution or action may be lawful or reasonably practicable, for
the content of any information submitted to it by the Company for
distribution to the Holders or for any inaccuracy of any translation
thereof, for any investment risk associated with acquiring an interest in
the Deposited Securities, for the validity or worth of the Deposited
Securities or for any tax consequences that may result from the ownership
of ADSs, Shares or Deposited Securities, for the credit-worthiness of any
third party, for allowing any rights to lapse upon the terms of this
Agreement or for the failure or timeliness of any notice from the Company,
or for any action or non action by it in reliance upon the opinion, advice
of or information from legal counsel, accountants, any person representing
Shares for deposit, any Holder or any other person believed by it in good
faith to be competent to give such advice or information. The Depositary
and its agents shall not be liable for any acts or omissions made by a
successor depositary whether in connection with a previous act or omission
of the Depositary or in connection with any matter arising wholly after
the removal or resignation of the Depositary, provided that in connection
with the issue out of which such potential liability arises the Depositary
performed its obligations without negligence or bad faith while it acted
as Depositary.
11. RESIGNATION AND REMOVAL OF THE DEPOSITARY: SUCCESSOR DEPOSITARY
The Depositary may resign as Depositary by written notice of resignation
delivered to the Company, subject to such limitations as may be agreed by
the Company and the Depositary in writing from time to time, such
resignation to be effective on the earlier of (i) the 90th day after
delivery thereof to the Company (whereupon the Depositary shall be
entitled to take the actions contemplated in Section 13), or (ii) upon the
appointment by the Company of a successor depositary and its acceptance of
such appointment as hereinafter provided. The Depositary may be removed by
the Company by written notice of removal delivered to the Depositary,
subject to such limitations as may be agreed by the Company and the
Depositary in writing from time to time, which removal shall be effective
on the later to occur of (i) the 90th day after delivery thereof to the
Depositary (whereupon the Depositary shall be entitled to take the actions
contemplated in Section 13), or (ii) upon the appointment by the Company
of a successor depositary and its acceptance of such appointment as
hereinafter provided. At any time when the Depositary may resign or be
removed hereunder, the Company shall be subject to prior
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payment of any amounts, fees, costs or expenses owed to the Depositary
hereunder or in accordance with any other arrangements otherwise agreed to
in writing between the Company and the Depositary, prior to such
resignation or removal taking effect. If the Depositary shall resign or be
removed, the Company shall use its best efforts to appoint a bank or trust
company having an office in The City of New York, as successor depositary
hereunder. Every successor depositary shall execute and deliver to its
predecessor and to the Company written acceptance of its appointment
hereunder, and thereupon such successor depositary shall become Depositary
hereunder; but such predecessor, upon payment of all sums due it hereunder
and on the written request of the Company, shall execute and deliver an
instrument transferring all rights and powers hereunder, shall duly
assign, transfer and deliver all of its right, title and interest in the
Deposited Securities to such successor, and shall deliver to such
successor a list of the names and addresses of, and holdings of ADSs by,
all Holders. Any bank or trust company into or with which the Depositary
may be merged or consolidated, or to which the Depositary shall transfer
substantially all its American depositary receipt business (including the
ADR facility created pursuant to this Agreement), shall be the successor
depositary hereunder without any further action. Upon the appointment or
accession of any successor depositary hereunder, any Custodian then acting
hereunder shall forthwith become the agent hereunder of such successor
depositary and such successor depositary shall, on the written request of
such Custodian, execute and deliver to such Custodian any instruments
necessary to give such Custodian authority as the agent hereunder of such
successor depositary.
12. AMENDMENT
The ADRs and this Agreement may be amended by the Company and the
Depositary without consent of the Holders, provided that any amendment
that imposes or increases any fees or charge or that shall otherwise
prejudice any substantial existing right of Holders, shall become
effective 30 days after notice of such amendment shall have been given to
the Holders (except any amendment relating to stock transfer or other
taxes and other governmental charges, transfer or registration fees,
cable, telex or facsimile transmission costs, delivery costs or other such
expenses shall become effective immediately without consent of the
Holders). Every Holder, at the time any amendment so becomes effective,
shall be deemed, by continuing to hold any ADR, to consent and agree to
such amendment and to be bound by the ADRs and this Agreement as amended
thereby.
13. TERMINATION
The Depositary shall, at the written direction of the Company, terminate
this Agreement and the ADRs by mailing notice of such termination to the
Holders at least 30 days prior to the date fixed in such notice for such
termination. The Depositary may terminate this Agreement, after giving
notice to the Holders as set forth in the preceding sentence of this
Section 13 at any time 45 days or more after the Depositary shall have
delivered to the Company its written resignation, provided that no
successor depositary shall have been appointed and accepted its
appointment as provided in Section 11 before the end of such 45 days.
After the date so fixed for termination, the Depositary and its agents
shall perform no further acts under this Agreement and the ADRs, except to
advise Holders of such termination, receive and hold (or sell)
distributions on Deposited Securities and deliver Deposited Securities
being withdrawn together with any such distributions on Deposited
Securities. As soon as practicable after the expiration of one year from
the date so fixed for termination, the Depositary shall, to the extent
practicable, sell the Deposited Securities and shall thereafter (as long
as it may lawfully do so) hold the net proceeds of such sales, together
with any other cash then held by it under this Agreement, without
liability for interest, for the pro rata benefit of the Holders of ADRs
not theretofore surrendered. After making such sale, the Depositary shall
be discharged from all obligations in respect of this Agreement and the
ADRs, except to account for such net proceeds and other cash and its
indemnification obligations to the Company. After the date so fixed for
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termination, the Company shall be discharged from all obligations under
this Agreement except for its indemnification and payment obligations to
the Depositary.
14. INFORMATION
14.1 Available Information
This Agreement, the Company's Articles of Incorporation, and written
communications from the Company that are received by the Custodian or the
Depositary in accordance with Section 14.6, are available for inspection
by Holders at the Depositary's Office and the office of the Custodian
during normal business hours on any Business Day. The Company is exempt
from the periodic reporting requirements of the Securities Exchange Act.
The Company furnishes the Commission with certain public reports and
documents pursuant to Rule 12g3-2(b) under the Securities Exchange Act.
Such reports and documents may be inspected and copied at the public
reference facilities maintained by the Commission located at the date of
this Agreement at Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549.
The Depositary shall make available during normal business hours on any
Business Day for inspection by Holders at the Depositary's Office any
reports and communications, including any proxy soliciting materials,
received from the Company which are both (a) received by the Depositary,
the Custodian, or the nominee of either of them as the holder of the
Deposited Securities and (b) made generally available to the holders of
such Deposited Securities by the Company.
14.2 Articles of Incorporation
The Company has delivered to the Depositary and the Custodian, a copy of
its Articles of Incorporation (in English or with an English translation)
and, promptly upon any amendment thereto, the Company shall deliver to the
Depositary and the Custodian a copy (in English or with an English
translation) of such amendment.
14.3 Compliance with Information Requests
Notwithstanding any other provision of this Agreement, the Receipts, the
Articles of Incorporation and applicable law, each Holder and Beneficial
Owner agrees to (a) provide such information as the Company or the
Depositary may request pursuant to applicable law (including, without
limitation, relevant Japanese law and any applicable law of the United
States), the Articles of Incorporation, any resolutions of the Company's
Management Board or Supervisory Board adopted pursuant to such Articles of
Incorporation, the requirements of any markets or exchanges upon which the
Shares, ADSs or Receipts are listed or traded, or to any requirements of
any electronic book-entry system by which the ADSs or Receipts may be
transferred, and (b) be bound by and subject to applicable provisions of
the laws of Japan, the Articles of Incorporation and the requirements of
any markets or exchanges upon which the ADSs, Receipts or Shares are
listed or traded, or pursuant to any requirements of any electronic
book-entry system by which the ADSs, Receipts or Shares may be
transferred, to the same extent as if such Holder and Beneficial Owner
held Shares directly, in each case irrespective of whether or not they are
Holders or Beneficial Owners at the time such request is made, and (c)
without limiting the generality of the foregoing, comply with all
applicable provisions of Japanese law, the rules and requirements of the
Tokyo Stock Exchange and any other stock exchange on which the Shares are,
or will be registered, traded or listed and the Company's Articles of
Incorporation regarding any such Holder or Beneficial Owner's interest in
Shares (including the aggregate of ADSs and Shares held by each such
Holder or Beneficial Owner), in compliance with the Securities and
Exchange Law, or any substitute or supplemental provision of Japanese law
that may be bought into force from time to time. Each Holder and
Beneficial Owner acknowledges that, at the date of this Agreement, (i) the
statutory notification
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obligations of the Securities and Exchange Law apply to anyone whose
holding, either directly or by way of imputation pursuant to the
provisions of Article 27-23 of the Securities and Exchange Law, of voting
rights in the Company reaches or exceeds 5%, or, after having reached or
exceeded any such threshold, fluctuates by 1% or more and (ii) the
statutory notification obligations of the Foreign Exchange Law, apply to
any non-Japanese person or enterprise that, either directly or by way of
imputation pursuant to the provisions of Article 26 of the Foreign
Exchange Law, owns more than 10% of the shares of the Company or, after
having exceeded either of these thresholds, no longer owns such
percentage. Each Holder and Beneficial Owner acknowledges that failure to
provide on a timely basis any required notification of an interest in
Shares may result in withholding of certain rights, including voting and
dividend rights, in respect of the Shares in which such Beneficial Owner
has an interest. Each Holder and Beneficial Owner of ADSs further agrees
to furnish the Company with any such notification made in accordance with
this Section 14.3 and to comply with requests from the Company pursuant to
the laws of Japan, the rules and requirements of the Securities and
Exchange Law and any other stock exchange on which the Shares are, or will
be registered, traded or listed, and the Company's Articles of
Incorporation, whether or not they are Holders and/or Beneficial Owner at
the time of such request. The Depositary agrees to use its reasonable
efforts to forward upon the request of the Company, and at the Company's
expense, any such request from the Company to the Holders and to forward
to the Company any such responses to such requests received by the
Depositary.
14.4 Lists of Holders
The Company and each Holder shall, to the extent permitted by applicable
law, have the right to inspect the Register and the transfer records of
the Depositary, take copies thereof and require the Depositary to supply
copies of such records as the Company or any Holder may reasonably
request. The Depositary shall, to the extent permitted by applicable law,
furnish to the Company or any Holder, promptly upon the receipt of a
written request from the Company or such Holder, a list of the names and
addresses of, and holdings of ADSs by, all Holders, as of a recent date.
The Depositary shall provide copies to the Company or any Holder, promptly
upon receipt of a written request from the Company or such Holder, of any
information received by the Depositary in accordance with Section 5.6
unless such disclosure is prohibited by applicable law.
14.5 Proofs, Certificates and Other Information
Any person presenting Shares for deposit, any Holder and any Beneficial
Owner may be required, and every Holder and Beneficial Owner agrees, from
time to time to provide to the Depositary or the Custodian such proof of
citizenship or residence, taxpayer status, payment of all applicable taxes
or other governmental charges, exchange control approval, legal or
beneficial ownership of ADSs and Deposited Securities, compliance with
applicable laws and the terms of this Agreement and the provisions of, or
governing, the Deposited Securities or other information; to execute such
certifications and to make such representations and warranties, and to
provide such other information and documentation as the Depositary may
deem necessary or proper or as the Company may reasonably require by
written request to the Depositary consistent with its obligations
hereunder. The Depositary and the Registrar, as applicable, may withhold
the execution or delivery or registration of transfer of any Receipt or
the distribution or sale of any dividend or distribution of rights or of
the proceeds thereof, or to the extent not limited by the terms of Section
16, the delivery of any Deposited Securities, until such proof or other
information is filed or such certifications are executed, or such
representations and warranties are made, or such other documentation or
information provided, in each case to the Depositary's and the Company's
satisfaction. The Depositary shall from time to time on the written
request of the Company advise the Company of the availability of any such
proofs, certificates or other information and shall, at the Company's sole
expense, provide or otherwise make available copies thereof to the Company
upon written request thereof by the
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Company, unless such disclosure is prohibited by law. Each Holder and
Beneficial Owner agrees to provide any information requested by the
Company or the Depositary pursuant to this paragraph. Nothing herein shall
obligate the Depositary to (i) obtain any information for the Company if
not provided by the Holders or Beneficial Owners or (ii) verify or vouch
for the accuracy of the information so provided by the Holders or
Beneficial Owners.
14.6 Notices
Notice to any Holder shall be deemed to be given when first mailed, first
class postage prepaid, or sent via telex or facsimile transmission to such
Holder at the address or telex or fax number, as the case may be, of such
Holder in the Register. Notice to the Depositary or the Company shall be
deemed to be given when first received by it at the address or fax number
set forth in (a) or (b) below, respectively, or at such other address or
fax number as either may specify to the other by written notice:
(a) Deutsche Bank Trust Company Americas
60 Wall Street
New York
NY 10005
United States
Attention: ADR Department
Fax: +1-212-797-0327
(b) HOYA CORPORATION
2-7-5 Naka-Ochiai, Shinjuku-ku, Tokyo 161-8525 Japan
Attention: Investor Relations
Fax: +81-3-3952-0726
Notices to the Depositary must be in English.
14.7 Reports
The Depositary will, at the expense of the Company and in accordance with
Section 14.6, mail by regular, ordinary mail delivery or by electronic
transmission (if agreed between the Company and the Depositary) and unless
otherwise agreed in writing, copies of such communications (or English
translations or summaries thereof) to Holders when requested and furnished
by the Company.
15. INDEMNIFICATION
15.1 Indemnification by the Company
The Company agrees to indemnify the Depositary against any loss, liability
or expense (including reasonable fees and expenses of counsel) that may
arise out of (a) its acceptance and performance of its powers and duties
in respect of this Agreement, except to the extent such loss, liability or
expense (i) is due to the negligence or bad faith of the Depositary or its
agents or (ii) arises solely or exclusively out of a Pre-release of an ADR
and would not have arisen had such ADR not been the subject of a
Pre-release, or (b) any offer or sale of ADRs, ADSs, Shares or other
Deposited Securities or any registration statement under the Securities
Act in respect thereof, except to the extent such loss, liability or
expense arises out of information (or omissions from such information)
relating to the Depositary furnished in writing to the Company by the
Depositary expressly for use in such registration statement.
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15.2 Indemnification by the Depositary
The Depositary agrees to indemnify the Company against any loss, liability
or expense (including reasonable fees and expenses of counsel) incurred by
the Company in respect of this Agreement to the extent such loss,
liability or expense (a) is due to the negligence or bad faith of the
Depositary or its agents or (b) arises solely or exclusively out of a
Pre-release of an ADR and would not have arisen had such ADR not been the
subject of a Pre-release.
15.3 Notification and Settlement
Any person seeking indemnification hereunder (an "indemnified person")
shall notify the person from whom it is seeking indemnification (the
"indemnifying person") of the commencement of any indemnifiable action or
claim promptly after such indemnified person becomes aware of such
commencement (provided that the failure to make such notification shall
not affect such indemnified person's rights otherwise than under this
Section 15.3) and shall consult in good faith with the indemnifying person
as to the conduct of the defense of such action or claim, which shall be
reasonable in the circumstances. No indemnified person shall compromise or
settle any indemnifiable action or claim without the prior written consent
of the indemnifying person (which consent shall not be unreasonably
withheld).
15.4 Survival
The obligations set forth in this Section 15 shall survive the termination
of this Agreement.
16. COMPLIANCE WITH U.S. SECURITIES LAWS
16.1 Withdrawal or Delivery of Deposited Shares
Notwithstanding anything in this Agreement to the contrary, the withdrawal
or delivery of Deposited Securities will not be suspended by the Company
or the Depositary except as would be permitted by Instruction I.A.(1) of
the General Instructions to Form F-6 Registration Statement, as amended
from time to time, under the Securities Act.
16.2 Distribution of Shares in United States
Notwithstanding anything contained in this Agreement to the contrary, in
the event the Company proposes to issue or distribute Shares in the United
States, it shall furnish to the Depositary, at the Company's expense, a
written opinion of U.S. counsel (reasonably satisfactory to the
Depositary) stating whether or not such issuance or distribution (1)
requires a registration statement under the Securities Act to be in
effect, and if so, whether or not there is a registration statement in
effect which will cover such issuance or distribution or (2) is exempt
from the registration requirements of the Securities Act. The Depositary
shall not have any obligation to deposit or distribute such Shares unless
it has received evidence reasonably satisfactory to it that with respect
to such issuance or distribution of such Shares by the Company a
registration statement has been declared effective or is exempt from the
registration requirements of the Securities Act and is in accordance with
all applicable laws or regulations.
17. MISCELLANEOUS
This Agreement is for the exclusive benefit of the Company, the
Depositary, the Holders, the Beneficial Owners, and their respective
successors hereunder, and shall not give any legal or equitable right,
remedy or claim whatsoever to any other person. The Holders and Beneficial
Owners shall be parties to this Agreement and shall be bound by the
provisions hereof. If any such provision is invalid, illegal or
unenforceable in any respect, the remaining provisions shall in no way be
affected thereby. This Agreement may be executed in two counterparts, each
of
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which shall be deemed an original and both of which shall constitute one
instrument. Subject to the provisions of Section 11, this Agreement may
not be assigned by either the Company or the Depositary. The Company
agrees not to appoint any other depositary for the issuance or
administration of depositary receipts evidencing any class of stock of the
Company so long as Deutsche Bank Trust Company Americas is acting as
Depositary hereunder.
18. GOVERNING LAW
This Agreement and the Receipts shall be interpreted in accordance with,
and all rights hereunder and thereunder and provisions hereof and thereof
shall be governed by, the laws of the State of New York without reference
to the principles of choice of law thereof. Except as set forth in the
following paragraph of this Section 18, the Company and the Depositary
agree that the federal or state courts in the City of New York shall have
jurisdiction to hear and determine any suit, action or proceeding and to
settle any dispute between them that may arise out of or in connection
with this Agreement and, for such purposes, each irrevocably submits to
the non-exclusive jurisdiction of such courts. The Company hereby
irrevocably designates, appoints and empowers CT Corporation System (the
"Agent") now at 111 Eighth Avenue, New York, NY 10011, as its authorized
agent to receive and accept for and on its behalf, and on behalf of its
properties, assets and revenues, service by mail of any and all legal
process, summons, notices and documents that may be served in any suit,
action or proceeding brought against the Company in any federal or state
court as described in the preceding sentence or in the next paragraph of
this Section 18. If for any reason the Agent shall cease to be available
to act as such, the Company agrees to designate a new agent in the City of
New York on the terms and for the purposes of this Section 18 reasonably
satisfactory to the Depositary. The Company further hereby irrevocably
consents and agrees to the service of any and all legal process, summons,
notices and documents in any suit, action or proceeding against the
Company, by service by mail of a copy thereof upon the Agent (whether or
not the appointment of such Agent shall for any reason prove to be
ineffective or such Agent shall fail to accept or acknowledge such
service), with a copy mailed to the Company by registered or certified air
mail, postage prepaid, to its address provided in Section 14.6 hereof. The
Company agrees that the failure of the Agent to give any notice of such
service to it shall not impair or affect in any way the validity of such
service or any judgment rendered in any action or proceeding based
thereon.
Notwithstanding the foregoing, the Depositary and the Company
unconditionally agree that in the event that a Holder or Beneficial Owner
brings a suit, action or proceeding against (a) the Company, (b) the
Depositary in its capacity as Depositary under this Agreement or (c)
against both the Company and the Depositary, in any state or federal court
of the United States, and the Depositary or the Company have any claim,
for indemnification or otherwise, against each other arising out of the
subject matter of such suit, action or proceeding, then the Company and
the Depositary may pursue such claim against each other in the state or
federal court in the United States in which such suit, action, or
proceeding is pending, and for such purposes, the Company and the
Depositary irrevocably submit to the non-exclusive jurisdiction of such
courts. The Company agrees that service of process upon the Agent in the
manner set forth in the preceding paragraph shall be effective service
upon it for any suit, action or proceeding brought against it as described
in this paragraph.
The Company irrevocably and unconditionally waives, to the full extent
permitted by law, any objection that it may now or hereafter have to the
laying of venue of any actions, suits or proceedings brought in any court
as provided in this Section 18, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court
that any such action, suit or proceeding brought in any such court has
been brought in an inconvenient forum.
-22-
HOYA CORPORATION
By:
----------------------------
Name:
Title:
DEUTSCHE BANK TRUST COMPANY AMERICAS
By:
----------------------------
Name:
Title:
By:
----------------------------
Name:
Title:
-23-
EXHIBIT A
ANNEXED TO AND INCORPORATED IN DEPOSIT AGREEMENT
[FORM OF FACE OF ADR]
CERTAIN RIGHTS OF THE HOLDER OF THIS AMERICAN DEPOSITARY RECEIPT MAY BE WITHHELD
IN ACCORDANCE AS DESCRIBED IN PARAGRAPH 8 BELOW, INCLUDING, WITHOUT LIMITATION,
VOTING RIGHTS AND THE RIGHT TO RECEIVE DIVIDENDS AND OTHER DISTRIBUTIONS
[Number] No. of ADSs: O
Each ADS represents
One (1) Share
CUSIP: 443251103
ISIN: US4432511032
AMERICAN DEPOSITARY RECEIPT
evidencing
AMERICAN DEPOSITARY SHARES
representing
SHARES OF COMMON STOCK
of
HOYA CORPORATION
(Incorporated under the laws of Japan)
Deutsche Bank Trust Company Americas, as depositary hereunder (the
"Depositary"), hereby certifies that O is the registered owner (a "Holder") of O
American Depositary Shares ("ADSs"), each representing one (1) share of common
stock, including the right to receive a Share ("Share" and, together with any
additional securities or cash from time to time held by the Depositary or the
Custodian referred to below in respect or in lieu, thereof, the "Deposited
Securities"), of HOYA CORPORATION, a corporation incorporated under the laws of
the Japan (the "Company"), deposited at the Tokyo office of Sumitomo Mitsui
Banking Corporation, as custodian (the "Custodian"). This ADR is issued pursuant
to the Deposit Agreement dated as of October __, 2004 (as amended from time to
time, the "Agreement") among the Company, the Depositary and Holders from time
to time of ADR issued thereunder ("ADRs"), each of whom by accepting an ADR
agrees to become a party thereto. Copies of the Agreement are on file at the
Depositary's office at 60 Wall Street, New York, NY 10005 and at the office of
the Custodian at 1-2, Yurakucho 1-chome, Chiyoda-Ku, Tokyo 100-0006. The
Agreement and this ADR shall be governed by and construed in accordance with the
laws of the State of New York without reference to the principles of choice of
law thereof.
The statements made on the face and reverse of this ADR are summaries of certain
provisions of the Agreement and are qualified by and subject to the detailed
provisions of the Agreement, to which reference is hereby made. Capitalized
terms defined in the Agreement and not defined herein shall have the meanings
set forth in the Agreement.
A-1
1. DEPOSIT OF SHARES
1.1 Deposit with Custodian
Subject to the terms and conditions of the Agreement, the Depositary shall issue
ADRs for delivery at the Depositary's Office against delivery or transfer to the
Custodian of: (a) Shares by credit to the account of the Custodian with JASDEC;
or (b) subject to the provisions of Paragraph 2.3 below, rights to receive
Shares. In connection with any such deposit, the Depositary or the Custodian may
require a Delivery Order. Every deposit of Shares shall be accompanied by the
following: (A) (i) in the case of Shares issued in certificated form, the
certificates representing such Shares and (ii) in the case of Shares delivered
by book-entry transfer, confirmation of such book-entry transfer to the
Custodian or that irrevocable instructions have been given to cause such Shares
to be so transferred, (B) such certifications and payments (including, without
limitation, any applicable taxes and governmental charges and the Depositary's
fees, and related charges in accordance with Paragraph 15 below) and evidence of
such payments (including, without limitation, stamping or otherwise marking such
Shares by way of receipt) as may be required by the Depositary, Custodian or
JASDEC, as the case may be, in accordance with the provisions of the Agreement,
(C) if the Depositary so requires, a Delivery Order, (D) evidence satisfactory
to the Depositary (which may include an opinion of counsel reasonably
satisfactory to the Depositary provided at the cost of the person seeking to
deposit Shares) that all conditions to such deposit have been met and all
necessary approvals have been granted by, and there has been compliance with the
rules and regulations of, any applicable governmental agency in Japan, and (E)
if the Depositary so requires, (i) an agreement, assignment or instrument
satisfactory to the Depositary or the Custodian which provides for the prompt
transfer by any person in whose name the Shares are or have been recorded to the
Custodian of any distribution, or right to subscribe for additional Shares or to
receive other property in respect of any such deposited Shares or, in lieu
thereof, such indemnity or other agreement as shall be satisfactory to the
Depositary or the Custodian and (ii) if the Shares are registered in the name of
the person on whose behalf they are presented for deposit, a proxy or proxies
entitling the Custodian to exercise voting rights in respect of the Shares for
any and all purposes until the Shares so deposited are registered in the name of
the Depositary, the Custodian or any nominee. No Share shall be accepted for
deposit unless accompanied by confirmation or such additional evidence, if any
is required by the Depositary, that is reasonably satisfactory to the Depositary
or the Custodian that all conditions to such deposit have been satisfied by the
person depositing such Shares under the laws and regulations of Japan and any
necessary approval has been granted by any governmental body in Japan, if any,
which is then performing the function of the regulator of currency exchange. The
Depositary may issue Receipts against evidence of rights to receive Shares from
the Company, JASDEC, the Foreign Registrar, any agent of the Company or any
custodian, registrar, transfer agent, clearing agency or other entity involved
in ownership or transaction records in respect of the Shares. Without limitation
of the foregoing, the Depositary shall not knowingly accept for deposit under
the Agreement any Shares required to be registered under the provisions of the
Securities Act, unless a registration statement is in effect as to such Shares.
The Depositary will use commercially reasonable efforts to comply with
reasonable written instructions of the Company that the Depositary shall not
accept for deposit hereunder any Shares specifically identified in such
instructions at such times and under such circumstances as may reasonably be
specified in such instructions in order to facilitate the Company's compliance
with the securities laws in the United States.
As soon as practicable after receipt of any permitted deposit of Shares
hereunder and compliance with the provisions of the Agreement, the Custodian
shall present the Shares so deposited, together with the appropriate instrument
or instruments of transfer or endorsement, duly stamped, to the Foreign
Registrar for transfer and registration of the Shares (as soon as transfer and
registration can be accomplished and at the expense of the person for whom the
deposit is made) in the name of the Depositary, the Custodian or a nominee of
either. Deposited Securities shall be held by the Depositary or by a Custodian
for the account and to the order of the Depositary or a nominee, in each case
for the account of the Holders and Beneficial Owners, at such place or places as
the Depositary or the Custodian shall determine.
A-2
In the event any Shares are deposited which entitle the holders thereof to
receive a per-share distribution or other entitlement in an amount different
from the Shares then on deposit, the Depositary is authorized to take any and
all actions as may be necessary (including, without limitation, making the
necessary notations on ADRs) to give effect to the issuance of such ADSs and to
ensure that such ADSs are not fungible with other ADSs issued hereunder until
such time as the entitlement of the Shares represented by such non-fungible ADSs
equals that of the Shares represented by ADSs prior to the deposit of such
non-fungible Shares. The Company agrees to give timely written notice to the
Depositary if any Shares issued or to be issued contain rights different from
those of any other Shares theretofore issued and shall assist the Depositary
with the establishment of procedures enabling the identification of such
non-fungible Shares upon delivery to the Custodian.
1.2 Representations
Every person depositing Shares under the Agreement is deemed to represent and
warrant that (i) such Shares are duly authorized, validly issued and
outstanding, fully paid, nonassessable and were legally obtained, (ii) such
Shares were not acquired in violation of any pre-emptive rights, (iii) the
person making such deposit is duly authorized to do so, (iv) such Shares are
free and clear of any lien, encumbrance, security interest, charge, mortgage or
adverse claim, (v) such Shares have not been stripped of any rights or
entitlements, and (vi) such Shares (a) are not "restricted securities" as such
term is defined in Rule 144 under the Securities Act and may be offered or sold
in the United States in transactions that are exempt from registration under the
Securities Act or (b) have been registered under the Securities Act. Such
representations and warranties shall survive the deposit of Shares and issuance
of ADRs.
2. ISSUE OF ADRS
2.1 Issuance
After any deposit of Shares or rights to receive Shares in accordance with
Paragraph 1.1 above, together with any other documents required by the
Depositary in accordance with the Agreement, the Custodian shall as promptly as
practicable notify the Depositary of such deposit and of the information
contained in any Delivery Order. Such notice shall be given in writing, either
by letter, airmail, postage prepaid, or, at the request, risk and expense of the
person making the deposit, by telex or facsimile or electronic transmission.
After receiving such notice from the Custodian, the Depositary, subject to the
Agreement, shall as promptly as practicable execute and deliver at the
Depositary's Office, to or upon the order of the person named in such notice,
ADRs registered as requested and evidencing the aggregate number of ADSs to
which such person is entitled. ADRs shall be issued only in denominations of any
whole numbers of ADSs. At the request, risk and expense of the person depositing
Shares or rights to receive Shares, the Depositary may deliver ADRs at a place
other than the Depositary's Office. ADRs may be issued by the Depositary only
under the circumstances expressly contemplated in the Agreement. Nothing herein
shall prohibit any Pre-Release upon the terms set forth in the Agreement.
2.2 Issuance of Additional Shares
The Company agrees that in the event it proposes (i) an issuance, sale or
distribution of additional Shares, (ii) an offering of rights to subscribe for
Shares or other Deposited Securities, (iii) an issuance of securities
convertible into or exchangeable for Shares, (iv) an issuance of rights to
subscribe for securities convertible into or exchangeable for Shares, (v) an
elective dividend of cash or Shares, (vi) a redemption of Deposited Securities
or (vii) any reclassification, merger, consolidation or transfer of assets
within the meaning of Rule 145 under the Securities Act, or any meeting of
holders of Deposited Securities, or solicitation of consents or proxies in
relation thereto (the "Transactions"), it will take all steps necessary to
ensure that (1) such Transaction does not violate the registration requirements
of the Securities Act, or any other applicable laws (including, without
limitation, the Investment Company Act of 1940, as amended, the Securities
Exchange Act or the securities laws of any of the states of the United States),
(2) such Transaction does not violate the laws or regulations of
A-3
Japan or the Company's Articles of Incorporation and (3) all requisite
regulatory consents and approvals have been obtained in Japan. If, being advised
by counsel, the Company determines that such Transaction is required to be
registered under the Securities Act, the Company will either (i) register such
Transaction to the extent necessary, (ii) alter the terms of such Transaction so
that the registration requirements of the Securities Act do not apply or (iii)
direct the Depositary to take specific measures, in each case as contemplated in
the Agreement, to prevent such Transaction from violating the registration
requirements of the Securities Act. The Depositary shall not have any obligation
to deposit or distribute additional Shares, rights to subscribe for Shares or
Deposited Securities, securities convertible into or exchangeable for Shares or
rights to subscribe for such securities issued or distributed by the Company in
a Transaction unless it has received evidence reasonably satisfactory to it that
with respect to such Transaction a registration statement has been declared
effective or such Transaction is exempt from the registration requirements of
the Securities Act and is in accordance with all applicable laws or regulations.
The Company agrees with the Depositary that neither the Company nor any of its
Affiliates will at any time (i) deposit any Shares or other Deposited
Securities, either upon original issuance or upon a sale of Shares or other
Deposited Securities previously issued and reacquired by the Company or by any
such Affiliate, or (ii) issue additional Shares, rights to subscribe for such
Shares, securities convertible into or exchangeable for Shares or rights to
subscribe for such securities, unless such transaction and the securities
issuable in such transaction are exempt from registration under the Securities
Act or have been registered under the Securities Act (and such registration
statement has been declared effective).
Notwithstanding anything else contained in the Agreement, nothing in the
Agreement shall be deemed to obligate the Company to file any registration
statement in respect of any proposed transaction.
2.3 Pre-release
Unless requested in writing by the Company to cease doing so, the Depositary may
execute and deliver ADRs prior to the receipt of Shares pursuant to Paragraph
1.1. The Depositary may deliver Shares upon the receipt and cancellation of
Pre-released ADRs, whether or not such cancellation is prior to the termination
of such Pre-release or the Depositary knows that such ADR has been Pre-released.
The Depositary may receive ADRs in lieu of Shares in satisfaction of a
Pre-release. Each Pre-released ADR will be (a) preceded or accompanied by a
written representation and agreement from the Applicant that the Applicant, or
its customer, (i) owns the Shares or ADRs to be remitted, as the case may be,
(ii) transfers all beneficial right, title and interest in such Shares or ADRs,
as the case may be, to the Depositary in its capacity as such and for the
benefit of the Holders, and (iii) will not take any action with respect to such
Shares or ADRs, as the case may be, that is inconsistent with the transfer of
ownership (including, without the consent of the Depositary, disposing of Shares
or ADRs, as the case may be, other than in satisfaction of such Pre-release),
(b) at all times fully collateralized with cash, U.S. government securities or
such other collateral as the Depositary determines, in good faith, will provide
substantially similar liquidity and security, (c) terminable by the Depositary
on not more than five business days notice, and (d) subject to such further
indemnities and credit regulations as the Depositary deems appropriate. The
number of Shares not deposited but represented by ADSs outstanding at any time
as a result of Pre-releases will not normally exceed 30% of the Shares deposited
hereunder; provided, however, that the Depositary reserves the right to
disregard such limit from time to time as it deems reasonably appropriate, and
may, with the prior written consent of the Company, change such limit for
purposes of general application. The Depositary will also set U.S. dollar limits
with respect to Pre-release transactions to be entered into hereunder with any
particular Pre-release on a case-by-case basis as the Depositary deems
appropriate. For the purposes of enabling the Depositary to fulfil its
obligations to the Holders under the Agreement, the collateral referred to in
clause (b) above shall be held by the Depositary as security for the performance
of the Applicant's obligation to deliver Shares or ADRs upon termination of a
Pre-release transaction (and shall not, for the avoidance of doubt, constitute
Deposited Securities hereunder). The Depositary may retain for its own account
any compensation received by it in connection with the foregoing.
3. TRANSFER, COMBINATION AND SPLIT-UP OF ADRS
A-4
Subject to the terms and conditions of the Agreement, the Depositary shall, upon
surrender of an ADR or ADRs in form satisfactory to the Depositary at the
Depositary's Office (a) for the purpose of transfer, if such ADRs are
accompanied by such instruments of transfer as the Depositary may require and
are stamped as may be required by law, register the transfer of such ADRs on the
Register and execute and deliver new ADRs to or upon the order of the person
entitled thereto; and (b) for the purpose of effecting a split-up or
combination, execute and deliver a new ADR or ADRs in such denominations as may
be requested, evidencing the same aggregate number of ADRs as the ADRs
surrendered.
4. SURRENDER OF RECEIPTS AND WITHDRAWAL OF DEPOSITED SECURITIES
Upon surrender, at the Depositary's Office, of ADSs for the purpose of
withdrawal of the Deposited Securities represented thereby, and upon payment of
(i) the fees and charges of the Depositary for the making of withdrawals of
Deposited Securities and cancellation of ADRs (as set forth in Paragraph 15
below) and (ii) all applicable taxes and governmental charges payable in
connection with such surrender and withdrawal, and subject to the terms and
conditions of the Agreement, the Company's Articles of Incorporation, and any
other provisions of or governing the Deposited Securities and other applicable
laws, the Holder of such ADSs shall be entitled to delivery, to him or upon his
order, of the Deposited Securities at the time represented by the ADSs so
surrendered. ADSs may be surrendered for the purpose of withdrawing Deposited
Securities by delivery of an ADR evidencing such ADSs (if held in certificated
form) or by book-entry delivery of such ADSs to the Depositary.
A Receipt surrendered for such purposes shall, if so required by the Depositary,
be properly endorsed in blank or accompanied by proper instruments of transfer
in blank, and if the Depositary so requires, the Holder thereof shall execute
and deliver to the Depositary a written order directing the Depositary to cause
the Deposited Securities being withdrawn to be delivered to or upon the written
order of a person or persons designated in such order. Thereupon, the Depositary
shall direct the Custodian to deliver (without unreasonable delay) at the
designated office of the Custodian or through a book entry delivery of the
Shares (in either case, subject to Paragraphs 5 and 14, and to the other terms
and conditions of the Agreement, to the Company's Articles of Incorporation, to
the provisions of or governing the Deposited Securities and to applicable laws,
now or hereafter in effect) to or upon the written order of the person or
persons designated in the order delivered to the Depositary as provided above,
the Deposited Securities represented by such ADSs, together with any certificate
or other proper documents of or relating to title of the Deposited Securities as
may be legally required, as the case may be, to or for the account of such
person.
The Depositary may, in its discretion, refuse to accept for surrender a number
of ADSs representing a number other than a whole number of Shares. In the case
of surrender of an ADR evidencing a number of ADSs representing other than a
whole number of Shares, the Depositary shall cause ownership of the appropriate
whole number of Shares to be delivered in accordance with the terms hereof, and
shall, at the discretion of the Depositary, either (i) issue and deliver to the
person surrendering such Receipt a new Receipt evidencing ADSs representing any
remaining fractional Share, or (ii) sell or cause to be sold the fractional
Shares represented by the Receipt surrendered and remit the proceeds of such
sale (net of applicable (a) fees and charges of, and expenses incurred by, the
Depositary and (b) taxes and other governmental charges) to the person
surrendering the Receipt.
At the request, risk and expense of any Holder so surrendering an ADR, and for
the account of such Holder, the Depositary shall direct the Custodian to forward
(to the extent permitted by law) any cash or other property (other than
securities) held in respect of, and any certificate or certificates and other
proper documents of or relating to title to, the Deposited Securities
represented by such ADR to the Depositary for delivery at Depositary's Office,
and for further delivery to such Holder. Such direction shall be given by letter
or, at the request, risk and expense of such Holder, by cable, telex or
facsimile transmission. Upon receipt by the Depositary, the Depositary may make
delivery to such person or persons entitled thereto at Depositary's Office of
any dividends or cash distributions with respect to the Deposited Securities
represented by such ADSs, or of any proceeds of sale of any dividends,
distributions or rights, which may at the time be held by the Depositary.
A-5
5. LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER, ETC. OF RECEIPTS;
SUSPENSION OF DELIVERY, TRANSFER, ETC.
As a condition precedent to the execution and delivery, registration,
registration of transfer, split-up, combination or surrender of any ADR, the
delivery of any distribution thereon or withdrawal of any Deposited Securities,
the Depositary or the Custodian may require (i) payment from the depositor of
Shares or presenter of the ADR of a sum sufficient to reimburse it for any tax
or other governmental charge and any stock transfer or registration fee with
respect thereto (including any such tax or charge and fee with respect to Shares
being deposited or withdrawn) and payment of any applicable fees and charges of
the Depositary as provided in Paragraph 15, (ii) the production of proof
satisfactory to it as to the identity and genuineness of any signature or any
other matter contemplated by Paragraph 12.4 and (iii) compliance with (A) any
laws or governmental regulations relating to the execution and delivery of ADRs
or ADSs or to the withdrawal or delivery of Deposited Securities and (B) such
reasonable regulations as the Depositary may establish consistent with the
provisions of the Agreement and applicable law.
The issuance of ADSs against deposits of Shares generally or against deposits of
particular Shares may be suspended, or the issuance of ADSs against the deposit
of particular Shares may be withheld, or the registration of transfer of ADRs in
particular instances may be refused, or the registration of transfers of ADRs
generally may be suspended, during any period when the transfer books of the
Depositary are closed or if any such action is deemed necessary or advisable by
the Depositary or the Company, in good faith, at any time or from time to time
because of any requirement of law, any government or governmental body or
commission or any securities exchange on which the Receipts or Shares are
listed, or under any provision of the Agreement or provisions of, or governing,
the Deposited Securities, or any meeting of shareholders of the Company or for
any other reason, subject, in all cases, to Section 16 of the Agreement.
6. DISTRIBUTIONS
6.1 Cash Distributions
Whenever the Depositary receives confirmation from the Custodian of receipt of
any cash dividend or other cash distribution on any Deposited Securities, or
receives proceeds from the sale of any Shares, rights, securities or other
entitlements under the terms hereof, the Depositary will, if at the time of
receipt thereof any amounts received in a foreign currency can in the judgment
of the Depositary (pursuant to Section 6.7 of the Agreement) be converted on a
practicable basis into Dollars transferable to the United States, promptly
convert or cause to be converted such cash dividend, distribution or proceeds
into Dollars (pursuant to Section 6.7 of the Agreement) and will distribute
promptly the amount thus received (net of applicable (a) fees and charges of,
and expenses incurred by, the Depositary and (b) taxes and other governmental
charges) to the Holders of record as of the ADS Record Date in proportion to the
number of ADSs held by such Holders respectively as of the ADS Record Date. The
Depositary shall distribute only such amount, however, as can be distributed
without attributing to any Holder a fraction of one cent. Any such fractional
amounts shall be rounded to the nearest whole cent and so distributed to Holders
entitled thereto. Holders and Beneficial Owners understand that in converting
foreign currency, amounts received on conversion are calculated at a rate which
exceeds three or four decimal places (the number of decimal places used by the
Depositary to report distribution rates). Any excess amount may be retained by
the Depositary as an additional cost of conversion, irrespective of any other
fees and expenses payable or owing hereunder and shall not be subject to
escheatment. If the Company, the Custodian or the Depositary is required to
withhold and does withhold from any cash dividend or other cash distribution in
respect of any Deposited Securities an amount on account of taxes, duties or
other governmental charges, the amount distributed to Holders on the ADSs
representing such Deposited Securities shall be reduced accordingly. Such
withheld amounts shall be forwarded by the Company, the Custodian or the
Depositary to the relevant governmental authority. Evidence of payment thereof
by the Company shall be forwarded by the Company to the Depositary upon request.
The Depositary will forward to the Company or its agent such information from
its records as the Company may reasonably request
A-6
to enable the Company or its agent to file with governmental agencies such
reports that are necessary to obtain benefits under the applicable tax treaties
for the Holders and Beneficial Owners of Receipts.
6.2 Distribution in Shares
If any distribution upon any Deposited Securities consists of free distribution
of Shares (in the form of a stock split or otherwise), the Company shall cause
such Shares to be deposited with the Custodian and registered, as the case may
be, in the name of the Depositary, the Custodian or any of their nominees. Upon
receipt of confirmation of such deposit from the Custodian, the Depositary shall
establish the ADS Record Date upon the terms described in Paragraph 7 and shall,
subject to Paragraph 15, either (i) distribute to the Holders as of the ADS
Record Date in proportion to the number of ADSs held as of the ADS Record Date,
additional ADSs, which represent in the aggregate the number of Shares received
as such dividend, or free distribution, subject to the other terms of the
Agreement (including, without limitation, applicable (a) fees and charges of,
and expenses incurred by, the Depositary and (b) taxes and other governmental
charges), or (ii) if additional ADSs are not so distributed, each ADS issued and
outstanding after the ADS Record Date shall, to the extent permissible by law,
thenceforth also represent rights and interests in the additional Shares
distributed upon the Deposited Securities represented thereby (net of applicable
(a) fees and charges of, and expenses incurred by, the Depositary and (b) taxes
and other governmental charges). In lieu of delivering fractional ADSs, the
Depositary shall sell the number of Shares represented by the aggregate of such
fractions and distribute the proceeds upon the terms described in Paragraph 6.1.
The Depositary may withhold any such distribution of Receipts if it has not
received satisfactory assurances from the Company that such distribution is
registered under the Securities Act or is exempt from the registration
requirements of the Securities Act. To the extent such distribution may be
withheld, the Depositary may dispose of all or a portion of such distribution in
such amounts and in such manner, including by public or private sale, as the
Depositary deems necessary and practicable, and the Depositary shall distribute
the net proceeds of any such sale (after deduction of applicable (a) fees and
charges of, and expenses incurred by, the Depositary and (b) taxes and other
governmental charges) to Holders entitled thereto upon the terms described in
Paragraph 6.1.
6.3 Distribution of Rights to Purchase Shares
(a) Distribution to ADS Holders. Whenever the Company intends to distribute
to the holders of the Deposited Securities rights to subscribe for
additional Shares, the Company shall give notice thereof to the
Depositary at least 60 days prior to the proposed distribution stating
whether or not it wishes such rights to be made available to Holders.
Upon receipt of a notice indicating that the Company wishes such rights
to be made available to Holders, the Depositary shall consult with the
Company to determine, and the Company shall determine, whether it is
lawful and reasonably practicable to make such rights available to the
Holders. The Depositary shall make such rights available to Holders only
if (i) the Company shall have timely requested that such rights be made
available to Holders, (ii) the Depositary shall have received
satisfactory documentation within the terms of the Paragraph 2.2, and
(iii) the Depositary shall have determined that such distribution of
rights is lawful and reasonably practicable. In the event any of the
conditions set forth above are not satisfied, the Depositary shall
proceed with the sale of the rights as contemplated in Paragraph 6.3(b)
or, if timing or market conditions may not permit, do nothing thereby
allowing such rights to lapse. In the event all conditions set forth
above are satisfied, the Depositary shall establish an ADS Record Date
(upon the terms described in Paragraph 7) and establish procedures (x)
to distribute such rights (by means of warrants or otherwise) and (y) to
enable the Holders to exercise the rights (upon payment of applicable
(a) fees and charges of, and expenses incurred by, the Depositary and
(b) taxes and other governmental charges). Nothing herein shall obligate
the Depositary to make available to the Holders a method to exercise
such rights to subscribe for Shares (rather than ADSs).
(b) Sale of Rights. If (i) the Company does not timely request the
Depositary to make the rights available to Holders or requests that the
rights not be made available to Holders, (ii) the Depositary fails to
receive satisfactory documentation within the terms of Paragraph 2.2 or
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determines it is not lawful or reasonably practicable to make the rights
available to Holders, or (iii) any rights made available are not
exercised and appear to be about to lapse, the Depositary shall
determine whether it is lawful and reasonably practicable to sell such
rights, in a riskless principal capacity or otherwise, at such place and
upon such terms (including public or private sale) as it may deem
proper. The Company shall assist the Depositary to the extent necessary
to determine such legality and practicability. The Depositary shall,
upon such sale, convert and distribute proceeds of such sale (net of
applicable (a) fees and charges of, and expenses incurred by, the
Depositary and (b) taxes and other governmental charges) upon the terms
set forth in Paragraph 6.1.
(c) Lapse of Rights. If the Depositary is unable to make any rights
available to Holders upon the terms described in Paragraph 6.3(a) or to
arrange for the sale of the rights upon the terms described in Paragraph
6.3(b), the Depositary shall allow such rights to lapse.
The Depositary shall not be responsible for (i) any failure to determine that it
may be lawful or practicable to make such rights available to Holders in general
or any Holders in particular, (ii) any foreign exchange exposure or loss
incurred in connection with such sale, or exercise, or (iii) the content of any
materials forwarded to the Holders on behalf of the Company in connection with
the rights distribution.
Notwithstanding anything to the contrary in this Paragraph 6.3, if registration
(under the Securities Act or any other applicable law) of the rights or the
securities to which any rights relate may be required in order for the Company
to offer such rights or such securities to Holders and to sell the securities
represented by such rights, the Depositary will not distribute such rights to
the Holders unless and until a registration statement under the Securities Act
covering such offering is in effect or the offering and sale of such securities
to Holders and Beneficial Owners are exempt from, or do not require registration
under, the provisions of the Securities Act or any other applicable laws. In the
event that the Company, the Depositary or the Custodian shall be required to
withhold and does withhold from any distribution of property (including rights)
an amount on account of taxes or other governmental charges, the amount
distributed to the Holders shall be reduced accordingly. In the event that the
Depositary determines that any distribution in property (including Shares and
rights to subscribe therefor) is subject to any tax or other governmental
charges which the Depositary is obligated to withhold, the Depositary may
dispose of all or a portion of such property (including Shares and rights to
subscribe therefor) in such amounts and in such manner, including by public or
private sale, as the Depositary deems necessary and practicable to pay any such
taxes or charges.
There can be no assurance that Holders generally, or any Holder in particular,
will be given the opportunity to exercise rights on the same terms and
conditions as the holders of Shares or be able to exercise such rights. Nothing
herein shall obligate the Company to file any registration statement in respect
of any rights or Shares or other securities to be acquired upon the exercise of
such rights.
6.4 Distributions Other Than Cash, Shares or Rights to Purchase Shares
(a) Whenever the Company intends to distribute to the holders of Deposited
Securities property other than cash, Shares or rights to purchase
additional Shares, the Company shall give notice thereof to the
Depositary at least 30 days prior to the proposed distribution and shall
indicate whether or not it wishes such distribution to be made to
Holders. Upon receipt of a notice indicating that the Company wishes
such distribution be made to Holders, the Depositary shall determine
whether such distribution to Holders is lawful and reasonably
practicable. The Depositary shall not make such distribution unless (i)
the Company shall have timely requested the Depositary to make such
distribution to Holders, (ii) the Depositary shall have received
satisfactory documentation within the terms of Paragraph 2.2, and (iii)
the Depositary shall have determined that such distribution is lawful
and reasonably practicable.
(b) Upon receipt of satisfactory documentation and the request of the
Company to distribute property to Holders and after making the requisite
determinations set forth in (a) above, the Depositary may distribute the
property so received to the Holders of record as of the ADS Record Date,
in proportion to the number of ADSs held by such Holders respectively
and in
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such manner as the Depositary may deem practicable for accomplishing
such distribution (i) upon receipt of payment or net of the applicable
fees and charges of, and expenses incurred by, the Depositary, and (ii)
net of any taxes and other governmental charges withheld. The Depositary
may dispose of all or a portion of the property so distributed and
deposited, in such amounts and in such manner (including public or
private sale) as the Depositary may deem practicable or necessary to
satisfy any taxes (including applicable interest and penalties) or other
governmental charges applicable to the distribution.
(c) If (i) the Company does not request the Depositary to make such
distribution to Holders or requests not to make such distribution to
Holders, (ii) the Depositary does not receive satisfactory documentation
within the terms of Paragraph 2.2, or (iii) the Depositary determines
that all or a portion of such distribution is not reasonably practicable
or feasible, the Depositary shall endeavor to sell or cause such
property to be sold in a public or private sale, at such place or places
and upon such terms as it may deem proper and shall distribute the net
proceeds, if any, of such sale received by the Depositary (net of
applicable (a) fees and charges of, and expenses incurred by, the
Depositary and (b) taxes and other governmental charges) to the Holders
as of the ADS Record Date upon the terms of Paragraph 6.1. If the
Depositary is unable to sell such property, the Depositary may dispose
of such property in any way it deems reasonably practicable under the
circumstances for nominal or no consideration and Holders and Beneficial
Owners shall have no rights thereto or arising therefrom.
Dated: DEUTSCHE BANK TRUST
COMPANY AMERICAS, as Depositary
By: _________________________
Vice President
The address of the Depositary's Office is 60 Wall Street, New York, New York,
10005 U.S.A.
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[FORM OF REVERSE OF ADR]
6.5 Withholding
In connection with any distribution on the Deposited Securities, each of the
Company, the Depositary and the Custodian shall remit to the appropriate
governmental authority such amounts (if any) as may be required by law to
withhold and pay to such authority. The Depositary shall forward to the Company
in a timely fashion such information from its records as the Company may
reasonably request to enable the Company to file necessary reports with
governmental authorities. The Depositary shall make reasonable efforts to
establish and maintain arrangements that assist Beneficial Owners in claiming
any tax refunds, credits or other benefits (pursuant to treaty or otherwise)
relating to distributions on the ADSs. The Depositary shall provide copies of
any filing that it makes in conjunction with any such arrangements to the
Company. The Company shall provide such cooperation in establishing and
maintaining any such arrangements as the Depositary may reasonably request.
If any present or future tax or other governmental charge shall become payable
by the Depositary or the Custodian with respect to any ADR or any Deposited
Securities or ADSs, such tax or other governmental charge shall be payable by
the Holders and Beneficial Owners to the Depositary and such Holders and
Beneficial Owners shall be deemed liable therefor. The Company, the Custodian
and/or the Depositary may withhold or deduct from any distributions made in
respect of Deposited Securities and may sell for the account of a Holder and/or
Beneficial Owner any or all of the Deposited Securities and apply such
distributions and sale proceeds in payment of such taxes (including applicable
interest and penalties) or charges, with the Holder and the Beneficial Owner
remaining fully liable for any deficiency. In addition to any other remedies
available to it, the Depositary and the Custodian may refuse the deposit of
Shares, and the Depositary may refuse to issue ADSs, to deliver ADRs, register
the transfer, split-up or combination of ADRs and the withdrawal of Deposited
Securities, until payment in full of such tax, charge, penalty or interest is
received. Every Holder and Beneficial Owner agrees to indemnify the Depositary,
the Company, the Custodian, and each of their respective agents, officers,
directors, employees and Affiliates for, and to hold each of them harmless from,
any claims with respect to taxes (including applicable interest and penalties
thereon) arising from any tax benefit obtained for such Holder and/or Beneficial
Owner. The obligations of Holders and Beneficial Owners of Receipts under this
Paragraph 6.5 shall survive any transfer of Receipts, any surrender of Receipts
and withdrawal of Deposited Securities, or the termination of the Agreement.
7. FIXING OF RECORD DATE
Whenever necessary in connection with any distribution (whether in cash, Shares,
rights, or other distribution), or whenever for any reason the Depositary causes
a change in the number of Shares that are represented by each ADS, or whenever
the Depositary shall receive notice of any meeting of or solicitation of holders
of Shares or other Deposited Securities, or whenever the Depositary shall find
it necessary or convenient, the Depositary shall fix a record date after
consultation with the Company (the "ADS Record Date"), as close as practicable
to the record date fixed by the Company with respect to the Shares, for the
determination of the Holders who shall be entitled to receive such distribution,
to give instructions for the exercise of voting rights at any such meeting, or
to give or withhold such consent, or to receive such notice or solicitation or
to otherwise take action, or to exercise the rights of Holders with respect to
such changed number of Shares represented by each ADS. Subject to applicable law
and the provisions of Paragraphs 6.1 through 6.4 and to the other terms and
conditions of the Agreement, only the Holders of record at the close of business
in New York on such ADS Record Date shall be entitled to receive such
distribution, to give such voting instructions, to receive such notice or
solicitation, or otherwise take action.
8. VOTING OF DEPOSITED SHARES
As soon as practicable after receipt of notice of any meeting at which the
holders of Shares are entitled to vote, or of solicitation of consents or
proxies from holders of Shares or other Deposited
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Securities, the Depositary shall, if requested by the Company in writing in a
timely manner (the Depositary having no obligation to take any further action if
the request shall not have been received by the Depositary at least 14 days
prior to the date of such vote or meeting) and at the Company's expense and
provided no U.S. legal prohibitions exist, mail by regular, ordinary mail
delivery or otherwise distribute to Holders as of the ADS Record Date: (a) such
notice of meeting or solicitation of consent or proxy; (b) a statement that the
Holders at the close of business on the ADS Record Date will be entitled,
subject to any applicable law, the Company's Articles of Incorporation and the
provisions of or governing the Deposited Securities (which provisions, if any,
shall be summarized in pertinent part by the Company), to instruct the
Depositary as to the exercise of the voting rights, if any, pertaining to the
Shares or other Deposited Securities represented by such Holder's ADSs; and (c)
a brief statement as to the manner in which such instructions may be given.
Voting instructions may be given only in respect of a number of ADSs
representing an integral number of Shares or other Deposited Securities. Upon
the timely receipt of written instructions of a Holder of ADSs on the ADS Record
Date of voting instructions in the manner specified by the Depositary, the
Depositary shall endeavor, insofar as practicable and permitted under applicable
law, the provisions of the Agreement, the Company's Articles of Incorporation
and the provisions of or governing the Deposited Securities, to vote or cause
the Custodian to vote the Shares and/or other Deposited Securities (in person or
by proxy) represented by ADSs evidenced by such Receipt in accordance with such
voting instructions. Neither the Depositary nor the Custodian shall, under any
circumstances exercise any discretion as to voting.
To the extent such instructions are not so received by the Depositary from any
Holder, the Depositary shall deem such Holder to have so instructed the
Depositary to give a discretionary proxy to a person designated by the Company
and the Depositary shall, insofar as practicable, give a discretionary proxy to
a person designated by the Company to vote the Deposited Securities represented
by the ADSs evidenced by such Holder's ADRs as to which such instructions are
deemed to have been so given, provided that no such instruction shall be deemed
given and no discretionary proxy shall be given with respect to any matter (w)
if not permitted under applicable law, the Company's Articles of Incorporation
or the provisions of or governing the Deposited Securties, (x) if the Company
does not wish such proxy to be given, (y) if there is substantial opposition to
such matter or (z) if such matter materially adversely affects the rights of
holders of Shares.
Notwithstanding any other provision of the Agreement, save for applicable
provisions of Japanese law, and in accordance with the terms of Paragraph 9, the
Depositary shall not be liable (i) for any failure to carry out any instructions
to vote any of the Deposited Securities or (ii) for any action or inaction
(including any deemed action or inaction) or the consequences thereof,
contemplated by the immediately preceding paragraph.
9. STANDARD OF CARE
The Company and the Depositary and their respective agents assume no obligation
and shall not be subject to any liability under the Agreement or any Receipts to
any Holder(s) or Beneficial Owner(s) or other persons (except in accordance with
the Agreement), provided, that the Company and the Depositary and their
respective agents agree to perform their respective obligations specifically set
forth in the Agreement or the applicable ADRs without negligence or willful
misconduct. Without limitation of the foregoing, neither the Depositary, nor the
Company, nor any of their respective controlling persons, or agents, shall be
under any obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Securities or in respect of the Receipts,
which in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expenses (including fees and disbursements of
counsel) and liabilities be furnished as often as may be required (and no
Custodian shall be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the
Depositary).
The Depositary and its agents shall not be liable for any failure to carry out
any instructions to vote any of the Deposited Securities, or for the manner in
which any vote is cast or the effects of any vote. The Depositary shall not
incur any liability for any failure to determine that any distribution or action
may be lawful or reasonably practicable, for the content of any information
submitted to it by the
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Company for distribution to the Holders or for any inaccuracy of any translation
thereof, for any investment risk associated with acquiring an interest in the
Deposited Securities, for the validity or worth of the Deposited Securities or
for any tax consequences that may result from the ownership of ADSs, Shares or
Deposited Securities, for the credit-worthiness of any third party, for allowing
any rights to lapse upon the terms of the Agreement or for the failure or
timeliness of any notice from the Company, or for any action or non action by it
in reliance upon the opinion, advice of or information from legal counsel,
accountants, any person representing Shares for deposit, any Holder or any other
person believed by it in good faith to be competent to give such advice or
information. The Depositary and its agents shall not be liable for any acts or
omissions made by a successor depositary whether in connection with a previous
act or omission of the Depositary or in connection with any matter arising
wholly after the removal or resignation of the Depositary, provided that in
connection with the issue out of which such potential liability arises the
Depositary performed its obligations without negligence or bad faith while it
acted as Depositary.
10. AMENDMENT
The ADRs and the Agreement may be amended by the Company and the Depositary
without consent of the Holders, provided that any amendment that imposes or
increases any fees or charge or that shall otherwise prejudice any substantial
existing right of Holders, shall become effective 30 days after notice of such
amendment shall have been given to the Holders (except any amendment relating to
stock transfer or other taxes and other governmental charges, transfer or
registration fees, cable, telex or facsimile transmission costs, delivery costs
or other such expenses shall become effective immediately without consent of the
Holders). Every Holder, at the time any amendment so becomes effective, shall be
deemed, by continuing to hold any ADR, to consent and agree to such amendment
and to be bound by the ADRs and the Agreement as amended thereby.
11. TERMINATION
The Depositary shall, at the written direction of the Company, terminate the
Agreement and the ADRs by mailing notice of such termination to the Holders at
least 30 days prior to the date fixed in such notice for such termination. The
Depositary may terminate the Agreement, after giving notice to the Holders as
set forth in the preceding sentence of this Paragraph 11 at any time 45 days or
more after the Depositary shall have delivered to the Company its written
resignation, provided that no successor depositary shall have been appointed and
accepted its appointment as provided in Section 11 of the Agreement before the
end of such 45 days. After the date so fixed for termination, the Depositary and
its agents shall perform no further acts under the Agreement and the ADRs,
except to advise Holders of such termination, receive and hold (or sell)
distributions on Deposited Securities and deliver Deposited Securities being
withdrawn together with any such distributions on Deposited Securities. As soon
as practicable after the expiration of one year from the date so fixed for
termination, the Depositary shall, to the extent practicable, sell the Deposited
Securities and shall thereafter (as long as it may lawfully do so) hold the net
proceeds of such sales, together with any other cash then held by it under the
Agreement, without liability for interest, for the pro rata benefit of the
Holders of ADRs not theretofore surrendered. After making such sale, the
Depositary shall be discharged from all obligations in respect of the Agreement
and the ADRs, except to account for such net proceeds and other cash and its
indemnification obligations to the Company. After the date so fixed for
termination, the Company shall be discharged from all obligations under the
Agreement except for its indemnification and payment obligations to the
Depositary.
12. INFORMATION
12.1 Available Information
The Agreement, the Company's Articles of Incorporation, and written
communications from the Company that are received by the Custodian or the
Depositary in accordance with Paragraph 12.5, are available for inspection by
Holders at the Depositary's Office and the office of the Custodian during normal
business hours on any Business Day. The Company is exempt from the periodic
reporting requirements of the Securities Exchange Act. The Company furnishes the
Commission with certain public reports and documents pursuant to Rule 12g3-2(b)
under the Securities Exchange Act. Such
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reports and documents may be inspected and copied at the public reference
facilities maintained by the Commission located at the date of the Agreement at
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549.
The Depositary shall make available during normal business hours on any Business
Day for inspection by Holders at the Depositary's Office any reports and
communications, including any proxy soliciting materials, received from the
Company which are both (a) received by the Depositary, the Custodian, or the
nominee of either of them as the holder of the Deposited Securities and (b) made
generally available to the holders of such Deposited Securities by the Company.
12.2 Compliance with Information Requests
Notwithstanding any other provision of this Agreement, the Receipts, the
Articles of Incorporation and applicable law, each Holder and Beneficial Owner
agrees to (a) provide such information as the Company or the Depositary may
request pursuant to applicable law (including, without limitation, relevant
Japanese law and any applicable law of the United States), the Articles of
Incorporation, any resolutions of the Company's Management Board or Supervisory
Board adopted pursuant to such Articles of Incorporation, the requirements of
any markets or exchanges upon which the Shares, ADSs or Receipts are listed or
traded, or to any requirements of any electronic book-entry system by which the
ADSs or Receipts may be transferred, and (b) be bound by and subject to
applicable provisions of the laws of Japan, the Articles of Incorporation and
the requirements of any markets or exchanges upon which the ADSs, Receipts or
Shares are listed or traded, or pursuant to any requirements of any electronic
book-entry system by which the ADSs, Receipts or Shares may be transferred, to
the same extent as if such Holder and Beneficial Owner held Shares directly, in
each case irrespective of whether or not they are Holders or Beneficial Owners
at the time such request is made, and (c) without limiting the generality of the
foregoing, comply with all applicable provisions of Japanese law, the rules and
requirements of the Tokyo Stock Exchange and any other stock exchange on which
the Shares are, or will be registered, traded or listed and the Company's
Articles of Incorporation regarding any such Holder or Beneficial Owner's
interest in Shares (including the aggregate of ADSs and Shares held by each such
Holder or Beneficial Owner), in compliance with the Securities and Exchange Law,
or any substitute or supplemental provision of Japanese law that may be bought
into force from time to time. Each Holder and Beneficial Owner acknowledges
that, at the date of this Agreement, (i) the statutory notification obligations
of the Securities and Exchange Law apply to anyone whose holding, either
directly or by way of imputation pursuant to the provisions of Article 27-23 of
the Securities and Exchange Law, of voting rights in the Company reaches or
exceeds 5%, or, after having reached or exceeded any such threshold, fluctuates
by 1% or more and (ii) the statutory notification obligations of the Foreign
Exchange Law, apply to any non-Japanese person or enterprise that, either
directly or by way of imputation pursuant to the provisions of Article 26 of the
Foreign Exchange Law, owns more than 10% of the shares of the Company or, after
having exceeded either of these thresholds, no longer owns such percentage. Each
Holder and Beneficial Owner acknowledges that failure to provide on a timely
basis any required notification of an interest in Shares may result in
withholding of certain rights, including voting and dividend rights, in respect
of the Shares in which such Beneficial Owner has an interest. Each Holder and
Beneficial Owner of ADSs further agrees to furnish the Company with any such
notification made in accordance with this Paragraph 12.2 and to comply with
requests from the Company pursuant to the laws of Japan, the rules and
requirements of the Securities and Exchange Law and any other stock exchange on
which the Shares are, or will be registered, traded or listed, and the Company's
Articles of Incorporation, whether or not they are Holders and/or Beneficial
Owner at the time of such request. The Depositary agrees to use its reasonable
efforts to forward upon the request of the Company, and at the Company's
expense, any such request from the Company to the Holders and to forward to the
Company any such responses to such requests received by the Depositary.
12.3 Lists of Holders
The Company and each Holder shall, to the extent permitted by applicable law,
have the right to inspect the Register and the transfer records of the
Depositary, take copies thereof and require the Depositary to supply copies of
such records as the Company or any Holder may reasonably request.
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The Depositary shall, to the extent permitted by applicable law, furnish to the
Company or any Holder, promptly upon the receipt of a written request from the
Company or such Holder, a list of the names and addresses of, and holdings of
ADSs by, all Holders, as of a recent date. The Depositary shall provide copies
to the Company or any Holder, promptly upon receipt of a written request from
the Company or such Holder, of any information received by the Depositary in
accordance with Paragraph 5 unless such disclosure is prohibited by applicable
law.
12.4 Proofs, Certificates and Other Information
Any person presenting Shares for deposit, any Holder and any Beneficial Owner
may be required, and every Holder and Beneficial Owner agrees, from time to time
to provide to the Depositary or the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership
of ADSs and Deposited Securities, compliance with applicable laws and the terms
of the Agreement and the provisions of, or governing, the Deposited Securities
or other information; to execute such certifications and to make such
representations and warranties, and to provide such other information and
documentation as the Depositary may deem necessary or proper or as the Company
may reasonably require by written request to the Depositary consistent with its
obligations hereunder. The Depositary and the Registrar, as applicable, may
withhold the execution or delivery or registration of transfer of any Receipt or
the distribution or sale of any dividend or distribution of rights or of the
proceeds thereof, or to the extent not limited by the terms of the Agreement,
the delivery of any Deposited Securities, until such proof or other information
is filed or such certifications are executed, or such representations and
warranties are made, or such other documentation or information provided, in
each case to the Depositary's and the Company's satisfaction. The Depositary
shall from time to time on the written request of the Company advise the Company
of the availability of any such proofs, certificates or other information and
shall, at the Company's sole expense, provide or otherwise make available copies
thereof to the Company upon written request thereof by the Company, unless such
disclosure is prohibited by law. Each Holder and Beneficial Owner agrees to
provide any information requested by the Company or the Depositary pursuant to
this paragraph. Nothing herein shall obligate the Depositary to (i) obtain any
information for the Company if not provided by the Holders or Beneficial Owners
or (ii) verify or vouch for the accuracy of the information so provided by the
Holders or Beneficial Owners.
12.5. Notices
Notice to any Holder shall be deemed to be given when first mailed, first class
postage prepaid, or sent via telex or facsimile transmission to such Holder at
the address or telex or fax number, as the case may be, of such Holder in the
Register. Notice to the Depositary or the Company shall be deemed to be given
when first received by it at the address or fax number set forth in (a) or (b)
below, respectively, or at such other address or fax number as either may
specify to the other by written notice:
(a) Deutsche Bank Trust Company Americas
60 Wall Street
New York
NY 10005
United States
Attention: ADR Department
Fax: +1-212-797-0327
(b) HOYA CORPORATION
2-7-5 Naka-Ochiai, Shinjuku-ku, Tokyo 161-8525 Japan
Attention: Investor Relations
Fax: +81-3-3952-0726
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Notices to the Depositary must be in English.
12.6. Reports
The Depositary will, at the expense of the Company and in accordance with
Paragraph 12.5, mail by regular, ordinary mail delivery or by electronic
transmission (if agreed between the Company and the Depositary) and unless
otherwise agreed in writing, copies of such communications (or English
translations or summaries thereof) to Holders when requested and furnished by
the Company.
13. INDEMNIFICATION
The Company agrees to indemnify the Depositary against any loss, liability or
expense (including reasonable fees and expenses of counsel) that may arise out
of (a) its acceptance and performance of its powers and duties in respect of the
Agreement, except to the extent such loss, liability or expense (i) is due to
the negligence or bad faith of the Depositary or its agents or (ii) arises
solely or exclusively out of a Pre-release of an ADR and would not have arisen
had such ADR not been the subject of a Pre-release, or (b) any offer or sale of
ADRs, ADSs, Shares or other Deposited Securities or any registration statement
under the Securities Act in respect thereof, except to the extent such loss,
liability or expense arises out of information (or omissions from such
information) relating to the Depositary furnished in writing to the Company by
the Depositary expressly for use in such registration statement.
The Depositary agrees to indemnify the Company against any loss, liability or
expense (including reasonable fees and expenses of counsel) incurred by the
Company in respect of this Agreement to the extent such loss, liability or
expense (a) is due to the negligence or bad faith of the Depositary or its
agents or (b) arises solely or exclusively out of a Pre-release of an ADR and
would not have arisen had such ADR not been the subject of a Pre-release.
14. COMPLIANCE WITH U.S. SECURITIES LAWS
14.1 Withdrawal or Delivery of Deposited Shares
Notwithstanding anything in the Agreement to the contrary, the withdrawal or
delivery of Deposited Securities will not be suspended by the Company or the
Depositary except as would be permitted by Instruction I.A.(1) of the General
Instructions to Form F-6 Registration Statement, as amended from time to time,
under the Securities Act.
14.2 Distribution of Shares in United States
Notwithstanding anything contained in the Agreement to the contrary, in the
event the Company proposes to issue or distribute Shares in the United States,
it shall furnish to the Depositary, at the Company's expense, a written opinion
of U.S. counsel (reasonably satisfactory to the Depositary) stating whether or
not such issuance or distribution (1) requires a registration statement under
the Securities Act to be in effect, and if so, whether or not there is a
registration statement in effect which will cover such issuance or distribution
or (2) is exempt from the registration requirements of the Securities Act. The
Depositary shall not have any obligation to deposit or distribute such Shares
unless it has received evidence reasonably satisfactory to it that with respect
to such issuance or distribution of such Shares by the Company a registration
statement has been declared effective or is exempt from the registration
15. FEES AND CHARGES OF THE DEPOSITARY
The Company, the Holders, the Beneficial Owners, and persons depositing Shares
or surrendering ADSs for cancellation and withdrawal of Deposited Securities
shall be required to pay to the Depositary the Depositary's fees and related
charges identified as payable by them respectively as set forth below.
The Depositary shall charge the following fees for the services performed under
the terms of the Deposit Agreement:
(i) to any person to whom ADSs are issued upon the deposit of Shares or
to any person to whom a distribution is made in respect of ADS
distributions pursuant to stock dividends
A-15
or other free distributions of stock, bonus distributions, stock
splits or other distributions (except where converted to cash), a fee
not in excess of U.S.$5.00 per 100 ADSs (or fraction thereof) so
issued under the terms of the Deposit Agreement to be determined by
the Depositary;
(ii) to any person surrendering ADSs for cancellation and withdrawal of
Deposited Securities including, inter alia, cash distributions made
pursuant to a cancellation or withdrawal, a fee not in excess of
U.S.$5.00 per 100 ADSs (or fraction thereof) so surrendered;
(iii) to any Holder of ADSs, a fee not in excess of U.S.$2.00 per 100 ADS
held for the distribution of cash proceeds, including cash dividends
or sale of rights and other entitlements, not made pursuant to a
cancellation or withdrawal;
(iv) to any Holder of ADSs, a fee not in the excess of U.S.$5.00 per 100
ADSs (or portion thereof) issued upon the exercise of rights.
In addition, Holders, Beneficial Owners, persons depositing Shares for deposit
and persons surrendering ADSs for cancellation and withdrawal of Deposited
Securities will be required to pay the following charges:
(i) taxes (including applicable interest and penalties) and other
governmental charges;
(ii) such registration fees as may from time to time be in effect for the
registration of Shares or other Deposited Securities with the Foreign
Registrar and applicable to transfers of Shares or other Deposited
Securities to or from the name of the Custodian, the Depositary or
any nominees upon the making of deposits and withdrawals,
respectively;
(iii) such cable, telex, facsimile and electronic transmission and delivery
expenses as are expressly provided in the Deposit Agreement to be at
the expense of the person depositing or withdrawing Shares or Holders
and Beneficial Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary in the conversion
of foreign currency;
(v) such fees and expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations and
other regulatory requirements applicable to Shares, Deposited
Securities, ADSs and ADRs;
(vi) the fees and expenses incurred by the Depositary in connection with
the delivery of Deposited Securities, including any fees of a central
depository for securities in the local market, where applicable; and
(vii) any additional fees, charges, costs or expenses that may be incurred
by the Depositary or its agents, or the Custodian, or its agents from
time to time.
Any other charges and expenses of the Depositary under the Deposit Agreement
will be paid by the Company upon agreement between the Depositary and the
Company.
All fees and charges so payable may, at any time and from time to time, be
changed by agreement between the Depositary and the Company, but, in the case of
fees and charges payable by Holders and Beneficial Owners, only in the manner
contemplated in Paragraph 10. The Depositary shall provide, without charge, a
copy of its latest fee schedule to anyone upon request.
A-16
EXHIBIT B
FEES AND CHARGES OF THE DEPOSITARY
The Company, the Holders, the Beneficial Owners, and persons depositing Shares
or surrendering ADSs for cancellation and withdrawal of Deposited Securities
shall be required to pay to the Depositary the Depositary's fees and related
charges identified as payable by them respectively as set forth below.
The Depositary shall charge the following fees for the services performed under
the terms of the Deposit Agreement:
(i) to any person to whom ADSs are issued upon the deposit of Shares or
to any person to whom a distribution is made in respect of ADS
distributions pursuant to stock dividends or other free
distributions of stock, bonus distributions, stock splits or other
distributions (except where converted to cash), a fee not in excess
of U.S.$5.00 per 100 ADSs (or fraction thereof) so issued under the
terms of the Deposit Agreement to be determined by the Depositary;
(ii) to any person surrendering ADSs for cancellation and withdrawal of
Deposited Securities including, inter alia, cash distributions made
pursuant to a cancellation or withdrawal, a fee not in excess of
U.S.$5.00 per 100 ADSs (or fraction thereof) so surrendered;
(iii) to any Holder of ADSs, a fee not in excess of U.S.$2.00 per 100 ADS
held for the distribution of cash proceeds, including cash dividends
or sale of rights and other entitlements, not made pursuant to a
cancellation or withdrawal;
(iv) to any Holder of ADSs, a fee not in the excess of U.S.$5.00 per 100
ADSs (or portion thereof) issued upon the exercise of rights.
In addition, Holders, Beneficial Owners, persons depositing Shares for deposit
and persons surrendering ADSs for cancellation and withdrawal of Deposited
Securities will be required to pay the following charges:
(i) taxes (including applicable interest and penalties) and other
governmental charges;
(ii) such registration fees as may from time to time be in effect for the
registration of Shares or other Deposited Securities with the
Foreign Registrar and applicable to transfers of Shares or other
Deposited Securities to or from the name of the Custodian, the
Depositary or any nominees upon the making of deposits and
withdrawals, respectively;
(iii) such cable, telex , facsimile and electronic transmission and
delivery expenses as are expressly provided in the Deposit Agreement
to be at the expense of the person depositing or withdrawing Shares
or Holders and Beneficial Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary in the
conversion of foreign currency;
(v) such fees and expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations and
other regulatory requirements applicable to Shares, Deposited
Securities, ADSs and ADRs;
B-1
(vi) the fees and expenses incurred by the Depositary in connection with
the delivery of Deposited Securities, including any fees of a
central depository for securities in the local market, where
applicable; and
(vii) any additional fees, charges, costs or expenses that may be incurred
by the Depositary or its agents, or the Custodian, or its agents
from time to time.
Any other charges and expenses of the Depositary under the Deposit Agreement
will be paid by the Company upon agreement between the Depositary and the
Company.
All fees and charges so payable may, at any time and from time to time, be
changed by agreement between the Depositary and the Company, but, in the case of
fees and charges payable by Holders and Beneficial Owners, only in the manner
contemplated in Section 12. The Depositary shall provide, without charge, a copy
of its latest fee schedule to anyone upon request.
The Depositary and the Company may reach separate agreement in relation to the
payment of any additional remuneration to the Depositary in respect of any
exceptional duties which the Depositary finds necessary or desirable and agreed
by both parties in the performance of its obligations hereunder and in respect
of the actual costs and expenses of the Depositary in respect of any notices
required to be given to the Holders in accordance with Section 14.6.
In connection with any payment by the Company to the Depositary:
(i) all fees, taxes, duties, charges, costs and expenses which are
payable by the Company shall be paid or be procured to be paid by
the Company (and any such amounts which are paid by the Depositary
shall be reimbursed to the Depositary by the Company upon demand
therefor); and
(ii) such payment shall be subject to all necessary exchange control
regulations, where applicable, and other consents and approvals
having been obtained. The Company undertakes to use its reasonable
endeavors to obtain all necessary approvals that are required to be
obtained by it in this connection.
The Company agrees to promptly pay to the Depositary such other fees and charges
and to reimburse the Depositary for such out-of-pocket expenses as the
Depositary and the Company may agree to in writing from time to time.
Responsibility for payment of such charges may at any time and from time to time
be changed by agreement between the Company and the Depositary.
All payments by the Company to the Depositary under this Exhibit B shall be paid
without set-off or counterclaim, and free and clear of and without deduction or
withholding for or on account of, any present or future taxes, levies, imports,
duties, fees, assessments or other charges of whatever nature, imposed by Japan
or by any department, agency or other political subdivision or taxing authority
thereof or therein, and all interest, penalties or similar liabilities with
respect thereto.
The right of the Depositary to receive payment of fees, charges and expenses as
provided above shall survive the termination of the Deposit Agreement. As to any
Depositary, upon the resignation or removal of such Depositary as described in
Section 11 of the Deposit Agreement, such right shall extend for those fees,
charges and expenses incurred prior to the effectiveness of such resignation or
removal.
B-2
Exhibit (d)
9 September 2004 56793.00002
Private & Confidential
Deutsche Bank Trust Company Americas,
as Depositary under the Deposit Agreement
referred to below
60 Wall Street
New York, NY 10005
U.S.A.
Ladies and Gentlemen,
Re: American Depositary Shares Evidenced by American Depositary Receipts for
Deposited Shares of HOYA CORPORATION
We have acted as special New York counsel to you in your capacity as Depositary
under the Deposit Agreement referred to below. We refer to the Registration
Statement (the "Registration Statement") on Form F-6 under the United States
Securities Act of 1933, as amended (the "Securities Act"), relating to the
American Depositary Shares (the "American Depositary Shares") evidenced by
American Depositary Receipts (the "American Depositary Receipts"), each American
Depositary Share representing one share of common stock of HOYA CORPORATION, a
corporation organized under the laws of Japan. Terms used herein and not defined
herein shall have the meanings assigned to them in the deposit agreement
appearing as Exhibit (a) to the Registration Statement (the "Deposit
Agreement").
In rendering the opinions set forth herein, we have assumed that (i) the Deposit
Agreement will have been duly authorized, executed and delivered by the Company
and the Depositary and will constitute a valid and binding obligation of the
Company enforceable against it in accordance with its terms, (ii) the relevant
Deposited Securities will have been duly deposited with a Custodian under and in
accordance with all applicable laws and regulations, (iii) that the choice of
New York law contained in the Deposit Agreement is legal and valid under the
laws of Japan and (iv) that insofar as any obligation under the Deposit
Agreement is to be performed in, or by a party organized under the laws of, any
jurisdiction outside of the United States of America, its performance will not
be illegal or ineffective in any jurisdiction by virtue of the laws of that
jurisdiction.
Based upon and subject to the foregoing, we are of the opinion that the American
Depositary Shares covered by the Registration Statement, when evidenced by
Receipts
9 September 2004
Page 2
that are duly executed and delivered by the Depositary and issued in accordance
with the terms of the Deposit Agreement, will be validly issued and will entitle
the registered holders thereof to the rights specified in the Deposit Agreement
and those Receipts.
The foregoing opinion is limited to the federal laws of the United States and
the laws of the State of New York and we express no opinion as to the laws of
any other jurisdiction. In addition, we express no opinion as to any law,
ordinance, rule or regulation of any municipality, village, town, county or
other political division of the State of New York.
We hereby consent to the use of this opinion as Exhibit (d) to the Registration
Statement. In giving such consent, we do not admit thereby that we are within
the category of persons whose consent is required under Section 7 of the
Securities Act of 1933.
Yours faithfully,
/s/ PAUL, HASTINGS, JANOFSKY & WALKER (EUROPE) LLP
PAUL, HASTINGS, JANOFSKY & WALKER (EUROPE) LLP